PROCEEDS OF CRIME ACT (assetrecoverysection)

CHAPTER 621

PROCEEDS OF CRIME ACT

AN ACT to provide for the identification, tracing, freezing and

confiscation of proceeds of crime including laundered property, income and

other benefits derived from such proceeds held by criminal defendants,

property that is the proceeds of, or used in, or intended or allocated for use in

the financing of terrorism, terrorist acts or terrorist organisations, for the

setting up of the Asset Recovery Bureau as a body, independent of the

Government, for the said purpose, for non-conviction based confiscation of

proceeds of crime and other matters consequential or ancillary thereto.

12th March, 2021 *

ACT V of 2021, as amended by Acts LXVIII of 2021 and VI of 2024.

The short title of this Act is the Proceeds of Crime Act.

(Articles 35 and 66)

Part One

-

Criminal Code Cap. 9

-

Code of Organization and Civil Procedure Cap. 12

-

Medical and Kindred Professions Ordinance Cap. 31

-

Dangerous Drugs Ordinance Cap. 101

-

Malta Financial Services Authority Act Cap. 330

-

Prevention of Money Laundering Act Cap. 373

-

Prevention of Financial Markets Abuse Act Cap. 476

Part Two

The Minister with prior approval by resolution of the House of

Representatives may within a period of three (3) years from the date of

the coming into force of this Schedule by Legal Notice repeal or

amend provisions in the enactments listed in Part One of this Schedule

insofar as they provide for matters also provided for in this Act.

(1)

In this Act, unless the context otherwise requires

"accused" shall include a person charged;

"amount established by the Minister by order in the

Gazette" includes both an order establishing a fixed amount as

well as an order establishing a formula determining the manner

in which such an amount should be computed whether by

reference to a specific period of time or from time to time;

"Board" means the Board of the Bureau established by

article 7;

"Bureau" means the Asset Recovery Bureau established

by article 6;

*See Legal Notice 98 of 2021.

PROCEEDS OF CRIME ACT

"category of cases" and "cases of any category" mean

both actions in personam as well as actions in rem as provided

for under this Act;

"Civil Court (Asset Recovery Section)" means the

section of the Civil Court established in Part III;

"confiscation" means taking or seizing a property by

order of the competent authority that deprives the owner of his

title, entirely or in part, for no compensation;

"Director" means the Director of the Bureau, and

includes a member of the Directorate staff duly authorised by

the Director and a contractor of the Bureau acting under the

instructions of the Director;

"Minister" means the Minister responsible for justice;

"owner" means a person with an ownership or secured

interest in property. "Owner" does not include a nominee who

despite having legal title, does not exercise dominion and

control over the property consistent with the rights of the true

owner. "Owner" also does not include an unsecured creditor

with a cause of action against the property owner or his estate

but no interest in specific property;

"property" means all assets of any kind, tangible or

intangible, moveable or immoveable, corporeal or incorporeal,

and includes virtual assets and legal documents or instruments

evidencing title to, or interest in, such assets, as well as one’s

entire patrimony;

"Seizing and Freezing Order" shall include a reference

to such an order using words to the same effect and in particular

includes an order referred to simply as a "Freezing Order"

under any other law;

"suspect" means a person suspected to have committed a

relevant offence;

"virtual asset" means a digital representation of value

that can be digitally traded, or transferred, and can be used for

payment or investment purposes.

(2)

(a)

Where it is provided in this Act that an action may be

instituted by "the Government" such action may be instituted by the

Asset Recovery Bureau and the Commissioner of Police acting either

individually or collectively provided that nothing in this sub-article shall

be interpreted as allowing the filing of more than one action on the same

claim by different applicants. The Asset Recovery Bureau and the

Commissioner of Police may conclude a memorandum of understanding

between them in order to determine the types of cases which shall be

pursued by each or by more than one of them.

(b)

In this Act unless the context otherwise requires,

any reference to "a person" shall be deemed to be a reference to

any person whether physical or moral, and includes a reference

to an association or body of persons, whether corporate or

incorporate and whether that association, body or other

grouping is for a transitory period, or for a particular end, or

otherwise.

(1)

"Proceeds of crime" means any economic advantage

or other benefit derived directly or indirectly from a relevant offence,

including but not limited to any property or interest in property that

would not have been obtained or retained but for the commission of

the offence.

(2) Proceeds of crime may consist of any kind of property of

any description and of whatsoever nature, whether movable or

immovable, corporeal or incorporeal irrespective of whether such

property is situated in Malta or otherwise and irrespective of by whom

such property is held, and includes any subsequent reinvestment or

transformation of proceeds.

(3)

Proceeds of crime means the gross proceeds of a relevant

offence without credit or deduction for any costs incurred in

committing the offence or taxes paid or owing.

(4)

"Facilitating property" means any property used or intended

to be used to commit or to facilitate the commission of a relevant

offence, such as by making the offence less difficult to commit or more

or less free from obstruction or hindrance.

(5)

"Property involved in money laundering" includes any

proceeds of crime that are the subject of the money laundering

transaction, any property commingled with the proceeds of crime at

the time the money laundering transaction occurs, any property in

which the proceeds or crime are invested or for which they are

exchanged in the course of the money laundering offence, and any

property used to facilitate the money laundering offence.

(6)

"Property subject to confiscation" includes the proceeds of

crime, facilitating property, and all property involved in a money

laundering offence.

A "relevant offence" is any offence under any law, and not

being an offence of an involuntary nature, liable to the punishment of

imprisonment or detention for a maximum term of at least one (1) year

unless otherwise provided for in another Part of this Act.

(1)

The confiscation of the proceeds of crime under this

Act shall not extinguish any liability of any person committing an

offence from any liability for the payment of damages to any person as

compensation for any loss suffered by such person as a consequence of

an offence.

(2)

Without prejudice to the provisions of this Act, any

proceedings commenced before the coming into force of this Act in

accordance with any other law or regulations shall continue to be

governed and regulated by the provisions of that law or regulations.

(3)

When a law provides for the confiscation of assets of the

accused as a consequence of a conviction, the provisions of such law

shall continue to apply in respect of such confiscation to the exclusion

of the provisions of this Act, sohowever that the provisions of this Act

shall nevertheless apply in respect of property which constitutes

proceeds of crime and which is not subject to confiscation under any

said law.

PART II

The Asset Recovery Bureau

(1)

There shall be established a body, independent of the

Government, to be known as the Asset Recovery Bureau.

(2) Subject to the provisions of this Act and of any other law, it

shall be the function of the Bureau to trace and identify proceeds of

crime and any other property subject to confiscation, and to take action

for their confiscation as well as their proper administration and

disposal, and to assist other law enforcement and regulatory authorities

in the fight against crime.

(3) The Bureau shall be a body having a distinct legal

personality from that of the Government and shall be capable subject

to the provisions of this Act to enter into contracts, to hold and dispose

of property of any kind for the purpose of its functions, to sue and be

sued and to enter into all such other transactions as are incidental or

conducive for the proper performance of its functions.

(4) In the exercise of its functions under this Act, the Bureau

shall not be subject to any direction or control by any person, authority

or body.

(5)

The Bureau shall consist of a Board and of a Directorate.

(6) The legal and judicial representation of the Bureau shall

vest in the Chairperson

Provided that the Board of the Bureau may appoint the

Director or any one or more of the members of the Directorate staff to

appear in the name and on behalf of the Bureau in any judicial

proceedings and in any act, deed, contract or instrument or other

document whatsoever.

(7) Any document purporting to be an instrument made or

issued by the Bureau and signed by the Chairperson on behalf of the

Bureau shall be received in evidence, and shall unless the contrary is

proved, be deemed to be an instrument made or issued by the Bureau.

(1)

The Board of the Bureau shall consist of a

Chairperson appointed by the Cabinet of Ministers, after consultation

with the Leader of the Opposition, from among persons who have held

the office of Judge or Magistrate, or who have held senior positions in

the public service of Malta, and four (4) other members as follows

(a)

the Commissioner of Police or his representative;

(b)

the

Commissioner

for

Revenue

or

his

representative;

(c)

the Chief Executive Officer of the Court Services

Agency or his representative;

(d)

the Director of the Financial Intelligence Analysis

Unit or his representative.

(2) One of the members of the Board of the Bureau shall be

appointed by the Minister as Deputy Chairperson. The Deputy

Chairperson shall have all the powers and perform all duties of the

Chairperson during the absence of the Chairperson or during any

period where the Chairperson cannot perform his function for any

other cause, or during any vacancy in the office of the Chairperson.

(3) The Board may act notwithstanding any vacancy in its

composition or during the absence of any of its members as long as the

Chairperson or the Deputy Chairperson and any two (2) other

members are present.

(4) A person shall not be qualified to be appointed, or to

continue to hold office, as a member of the Board if he is

(a)

interdicted or incapacitated;

(b)

has been declared bankrupt; or

(c)

has been found guilty of an offence in Malta or

abroad other than

(i)

an offence of an involuntary nature; or

(ii)

an offence liable to the punishment

established for contraventions.

(5) For the purpose of paragraph (c) of sub-article (4) of this

article a person who has been found guilty of an offence as specified in

that paragraph shall still be disqualified to hold office notwithstanding

that any punishment awarded has been suspended or such person has

been conditionally released or put under probation without the

infliction of any penalty or such person has been sentenced according

to the Probation Act without the infliction of any penalty.

(6) The Chairperson and the Deputy Chairperson shall be

appointed for a term of five (5) years and may be reappointed.

(7) Where a member of the Board holds office as the

representative of another person as provided in paragraphs (a) to (d) of

sub-article (1), such member shall be so appointed for a period of five

(5) years but may be reappointed.

(8) The Chairperson, the Deputy Chairperson and the other

members of the Board, including such other members as are

mentioned in sub-article (7) hereof shall discharge their duties in

accordance with their own individual judgement and shall not be

subject to the direction or control of any other person or authority.

(9) The members of the Board shall receive such remuneration

as the Minister may determine upon their appointment.

(10) A member of the Board may not be removed from office,

except by the President acting on the advice of the Cabinet of

Ministers on grounds or inability to perform his function (whether

arising from infirmity of body or mind or any other cause) or proved

misbehaviour.

(11) The Minister shall appoint a person being an advocate or a

legal procurator to act as Secretary to the Board.

(12) The minutes, discussions, deliberations and decisions of the

Board shall be treated as confidential and shall not be disclosed

except

(a)

when authorised to do so under any of the

provisions of this Act;

(b)

for the purpose of the performance of duties or

the exercise of functions under this Act; and

(c)

to any competent entity, court or tribunal.

(1)

The Board shall be responsible to establish the policy

to be adopted by the Bureau in the exercise of its functions under this

Act.

(2) The Board shall be responsible to ensure that the Bureau

carries out its functions in accordance with this Act and in accordance

with any policy established by it.

(3) The Board may from time to time, if it thinks fit, make

general rules for the guidance of the Directorate in the exercise of its

functions under this Act, and may at any time revoke or vary such

rules

Provided that nothing in this sub-article shall be construed

as authorising the said Board from giving directions with regard to the

conduct of any investigation or other function of the Bureau in any

particular case.

(4) The Board shall also verify and approve the accounts of the

Bureau and the draft estimates and the financial plans of the Bureau,

prepared by the Director before their final submission to the Minister

in accordance with this Act.

(5) The Board shall be kept informed by the Director on the

general running of the Bureau and the said Director shall moreover

inform the said Board of the general outcome of investigations and

operations concluded by the Bureau.

(1)

The Directorate of the Bureau shall consist of the

Director who shall be the Chief Executive Officer of the Bureau, a

Deputy Director and such other officers and employees of the Bureau

as may be engaged by the Bureau from time to time.

(2)

The Director shall be in charge of the overall management

and executive action of the Bureau and shall keep the Board informed

on the general running of the Bureau and of the general outcome of

investigations and operations concluded by the Bureau.

(3)

The Director shall be appointed by the Minister, after

consultation with the Board, for such period and on such terms as the

Minister may, in consultation with the Board, determine.

(4)

The Deputy Director and the other officers and employees

of the Directorate shall be selected by the Director and engaged by the

Bureau in accordance with such procedures and on such terms as the

Board may from time to time determinate.

(5)

The Deputy Director and the other officers and employees

of the Directorate (hereinafter collectively referred to as the directorate

staff) shall as far as possible be selected from among

(a) members of the Executive Police, nominated and

designated by the Commissioner of Police;

(b) officers in the departments falling under the

headship of the Commissioner for Revenue nominated and

designated by the Commissioner for Revenue; and

(c)

public officers.

(6)

The Bureau may also act through such contractors as it may

from time to time engage

Provided that such contractors shall at all times act in

accordance with such instructions as may be given to them by the

Director.

(7)

The Director and the Directorate staff shall for all purposes

of the Criminal Code be considered as public officers, and shall be

afforded all protection and may incur all liability as such.

(8)

The Director and the Directorate staff shall, subject to any

contrary provision in this Act or in any other law, abide by any code of

ethics applicable to public officers

Provided that nothing in this sub-article may be deemed to

preclude the Board to make further rules regulating the conduct of the

Director and of the Directorate staff to supplement any such Code of

Ethics.

(1)

The Board shall meet at least ten (10) times a year so

however that the Board shall ensure that the period of time between

one meeting and another shall not exceed six (6) weeks. Other

meetings of the Board shall be convened as may be necessary.

(2)

The Secretary to the Board shall take minutes of decisions at

its meetings. The minutes shall be signed by the Secretary and the

Chairperson.

(3) The meeting of the Board shall be chaired by the

Chairperson or in his absence the Deputy Chairperson.

(4) Decisions of the Board shall be adopted by a simple

majority of votes of the members present and voting, and in the event

of an equality of votes the Chairperson, or where the meeting is

presided by the Deputy Chairperson, the Deputy Chairperson shall

have and exercise a second or casting vote. The quorum at Board

meetings shall consist of three (3) members.

(5) The Director shall be entitled to attend the meetings of the

Board and to take part in the discussions. The Board may invite any

other member of the Directorate staff to attend meeting of the Board

and to participate in the discussions. The Director and any member of

the Directorate staff taking part in any discussion of the Board of the

Bureau shall not have a vote in the meetings in which they participate

Provided that the Chairperson may, if he considers it proper

so to do, at any time exclude the Director or any member of the

Directorate staff invited to attend at a meeting of the Board from any

meeting or part thereof.

(6) Any participation in a meeting of the Board of a person not

entitled to be present shall not invalidate the proceedings of the

meeting nor shall such proceedings be invalidated if it is subsequently

discovered that a person acted in good faith as a member and a defect

in his appointment or qualification is afterwards discovered.

(7) A week’s notice shall be given to the members of the Board

of any meeting thereof

Provided that in case where an urgent situation arises and

decisions are to be taken forthwith, decisions taken by at least two (2)

members of the Board, one of whom being the Chairperson or the

Deputy Chairperson, shall be valid as if taken by a meeting of the

Board regularly convened with proper notice.

(8) Subject to the other provisions of the this Act, the Board

shall regulate its own proceedings.

Without prejudice to the other provisions of this Act, the

appointment of officers and other employees of the Bureau shall be

made by the Bureau. The terms and conditions of employment shall be

established by the Bureau with the concurrence of the Minister.

The Bureau shall appoint and employ, at such remuneration

and upon such time terms and conditions as it may, in accordance with

articles 9 and 11, determine, such officers and employees of the

Bureau as may from time to time be necessary for the due and efficient

discharge of the functions of the Bureau.

(1)

The Prime Minister may, at the request of the Bureau,

from time to time direct that any public officer shall be detailed for

duty with the Bureau in such capacity and with effect from such date

as may be specified in the Prime Minister’s direction.

(2)

The period during which a direction as aforesaid shall apply

to any officer specified therein, shall, unless the officer retires from the

public service, or otherwise ceases to hold office at an earlier date, or

unless a different date is specified in such direction, cease to have

effect after one (1) year from the effective date of such direction unless

the direction is revoked earlier by the Prime Minister.

(1)

Where any officer is detailed for duty with the

Bureau under any of the provisions of article 13, such officer shall,

during the time in which such direction has effect in relation to him, be

under the administrative authority and control of the Bureau but he

shall for other intents and purposes remain and be considered and

treated as a public officer.

(2)

Without prejudice to the generality of the foregoing, an

officer detailed for duty as aforesaid

(a)

shall not during the time in respect of which he is

so detailed

(i)

be precluded from applying for a transfer

to a department of the Government in accordance with

the terms and conditions of service attached to the

appointment under the Government held by him at a date

on which he is so detailed for duty; or

(ii) be so employed that his remuneration and

conditions of service are less favourable than those

which are attached to the appointment under the

Government held by him at the date aforesaid or which

would have become attached to such appointment,

during the said period, had such officer not been detailed

for duty with the Bureau; and

(b)

shall be entitled to have his service with the

Bureau considered as service with the Government for the

purposes of any pension, gratuity, or benefit under the Pensions

Ordinance and the Widows and Orphans’ Pensions Act and of

any other right or privilege to which he would be entitled, and

liable to any liability to which he would be liable, but for the

fact of his being detailed for duty with the Bureau.

(3)

Where an application is made as provided in sub-article

(2)(a)(i) the same consideration shall be given thereto as if the

applicant had not been detailed for service with the Bureau.

(4)

The Bureau shall pay to the Government such contributions

as may from time to time be determined by the Minister responsible

for finance in respect of the cost of pensions and gratuities earned by

an officer detailed for duty with the Bureau as aforesaid during the

period in which he is so detailed.

(1)

The Bureau may, with the approval of the Prime

Minister, offer to any officer detailed for duty with the Bureau under

any of the provisions of article 12 permanent employment with the

Bureau at a remuneration and on terms and conditions not less

favourable than those enjoyed by such officer at the date of such offer.

(2)

The terms and conditions comprised in any offer made as

aforesaid shall not be deemed to be less favourable merely because

they are not in all respects identical with or superior to those enjoyed

by the officer concerned at the date of such offer, if such terms and

conditions, taken as a whole, in the opinion of the Prime Minister offer

substantially equivalent or greater benefits.

(3)

Every officer who accepts permanent employment with the

Bureau offered to him under the provisions of sub-article (1) shall for

all purposes other than those of the Pensions Ordinance and of the

Widows and Orphans’ Pensions Act, and saving the provisions of sub-

article (6), be deemed to have ceased to be in service with the

Government and to have entered into service with the Bureau on the

date of his acceptance, and for the purposes of the said Ordinance and

of the said Act, so far as applicable to him, service with the Bureau

shall be deemed to be service with the Government within the

meanings thereof respectively.

(4)

Every such officer as aforesaid who, immediately before

accepting permanent employment with the Bureau, was entitled to

benefit under the Widows and Orphans’ Pensions Act shall continue to

be so entitled to benefit thereunder to all intents as if his service with

the Bureau were service with the Government.

(5)

The Bureau shall pay to the Government such contributions

as may from time to time be determined by the Minister responsible

for finance in respect of the cost of pensions and gratuities earned by

an officer who has accepted performance of employment with the

Bureau as aforesaid during the period commencing on the date of such

officer’s acceptance.

(6) (a)

For the purposes of this article posts and salary

grades with the Bureau shall be classified in the most nearly

corresponding grades and incremental levels in the service under the

Government of Malta by reference to job description, skills,

responsibilities and other analogous factors.

(b)

The classification referred to in paragraph (a) shall be

carried out by a board composed of a chairman appointed by the

Ministry responsible for finance and two (2) other members, one

appointed by the Ministry responsible centrally for personnel policies

in the public service and one appointed by the Bureau. The

classification shall be subject to the final approval of the Minister

responsible for finance.

(c) Such classification shall take place within three (3) months

of any adjustment of salaries of employees in Government service and,

or, of employees of the Bureau.

(d) No post shall be classified in a grade higher than that of a

Grade 3 in the service of the Government or such other grade that the

Minister responsible for finance may from time to time by notice in the

Gazette determine.

(e)

Without prejudice to article 113 of the Constitution, no

person may, following a classification as aforesaid, be entitled to rights

under the said Pensions Ordinance less favourable than those to which

he would have been entitled prior to such classification.

(1)

In the exercise of his functions under this Act, the

Director and any member of the Directorate staff, authorised by him,

shall have power to seek from any person or authority any information

with regard to any person or with regard to any matter, and the person

in possession of such information shall notwithstanding the provision

of any law to the contrary be obliged to give the Director or any such

member all information so requested

Provided that

(a)

no advocate or legal procurator may be compelled

to disclose information derived from the professional

confidence which the parties themselves shall have placed in

their assistance and, or, advice;

(b)

no clergyman may be questioned on any matter or

circumstance that may have come to his knowledge under the

seal of confession or loco confessionis

Provided further that where any person or authority has

acquired information from any person or authority in any State other

than Malta through the operation of any treaty or arrangement with

such other State to which Malta is a party, and such treaty or

arrangement provides that any information passed through the

operation of such treaty or arrangement may not be divulged to any

other person except with the consent of the person passing the

information requested, the person from whom the information is

requested may withhold the information if such consent is not given.

(2)

The information referred to under sub-article (1) hereof

shall be provided within not more than thirty (30) days of receipt of the

request

Provided that upon good cause being shown to the Director,

such period may be extended by the Director for such further period or

periods as the Director may deem reasonable.

When a person is charged before a Court of Criminal

Jurisdiction in Malta, with a relevant offence

(a)

that has an economic, financial, monetary and/or

pecuniary dimension;

(b)

where proceeds of crime allegedly subsist; or

(c)

which is inextricably linked to that provided in

paragraph (b),

it shall be the duty of the prosecuting officer to inform the Bureau, as

soon as practicable and in any case not later than the lapse of one (1)

week of such person being charged, and to keep the Bureau informed of

the progress of the procedures against such person, in particular of any

conviction or acquittal and of any appeal and the result thereof.

It shall be the duty of the prosecuting officer in any case

where a person has been charged with a relevant offence, as notified to

the Bureau in accordance with article 17, to give to the Bureau all

necessary information that may be required to determine whether that

person has benefited from proceeds of crime, and to determine

whether any measure needs to be taken under this Act with regard to

that person or his property.

(1)

Where any property has by a final judgement of a

court been forfeited or confiscated in favour of the Government, it

shall be incumbent on the Registrar of such court to inform the Bureau

of such forfeiture or confiscation and to transmit to the Bureau a copy

of the judgement, ordering the forfeiture or confiscation or in virtue of

which the forfeiture or confiscation has taken place.

(2) The said Registrar shall moreover hand over to the Bureau

any property so forfeited or confiscated and, or any title to such

property that may be in the possession of the court.

(3) Without prejudice to the provisions of any other law

providing for forfeiture as a consequence of a conviction for a criminal

offence, the confiscation in favour of the Government of all property

subject to confiscation pertaining to a person found guilty of a relevant

offence is a civil consequence of any such conviction, and does not

need to be pronounced in the judgement finding his guilt. Where such

confiscation includes the proceeds of crime, it is not limited only to

proceeds deriving from the offence to which the judgement refers, but

extends to the proceeds of other relevant offences shown on a balance

of the probabilities to have been committed by the same person.

(4)

(a)

Where any property so forfeited or confiscated

consists of money in a currency other than the euro it shall be

converted to euro at the rate of exchange in force.

(b)

When such property consists of objects or other assets, it

shall be disposed of by the Bureau in a manner that ensures the

greatest benefit to the Government.

(5) Proceeds from the disposal of any property by the Bureau

shall be transferred by the Director to the Consolidated Fund or to such

other fund which may be set up by regulations made by the Minister

with the concurrence of the Minister responsible for finance for use in

support of efforts to combat money laundering and financing of

terrorism as soon as may be after receipt

Provided that such portion of, or such sum derived from

such proceeds, as may be determined in the estimates approved by the

Minister, may be retained by the Bureau as a reserve to cover on-going

and future expenses.

(6)

The Bureau shall also be entitled, with the authorisation of

the Civil Court (Asset Recovery Section), to take possession of and

manage, value, maintain and administer property which is frozen and

in the process of being confiscated and to sell such property which is

of a perishable nature or which requires substantial expense to

maintain or is subject to substantial depreciation. For this purpose the

Bureau may be assisted by its contractors or outsourced professionals.

(7)

For the purposes provided for in sub-article (6), the Bureau

may enter into contracts for the storage and maintenance of property

seized or frozen, and may pay compensation to appraisers, experts and

other professionals who may be engaged to assist the Bureau in

establishing the value, and make arrangements for, or coordinating the

sale, the transfer, or the assignment of such property either before or

after a final judgment is delivered.

The financial year of the Bureau shall begin on the first day

of January and end on the thirty first day of December

Provided that the first financial year of the Bureau shall

commence on the date of coming into force of this Act and shall end

on the 31st day of December of the following year.

(1)

The Director shall, not later than sixteen (16) weeks

before the end of each financial year, submit to the Board of the

Bureau estimates of the income and expenditure of the Bureau for the

following financial year.

(2) In the preparation of such estimates the Bureau shall

endeavour to ensure that the sums to be allocated to the Bureau,

together with any sums retained in accordance with the proviso to sub-

article (5) of article 19 are at least sufficient to meet all sums properly

chargeable to its income and expenditure accounts including, but

without prejudice to the generality of that expression, depreciation.

(3) The estimates shall be made out in such form, and shall

contain such information, and such comparisons with previous years,

as the Board may direct.

(4) Not later than three (3) weeks from the receipt of such

estimates from the Director, the Board shall consider such estimates

and shall transmit the same with or without amendments to the

Minister for his approval.

(5) Before the end of the financial year, the Minister shall

approve and adopt such estimates with or without amendments.

(6) If in respect of any financial year it is found that the amount

so approved is not sufficient or a need has arisen for expenditure for a

purpose not provided for in the estimates, the Director shall cause

supplementary estimates to be prepared and to be sent forthwith to the

Board for transmission to the Minister for his approval, and in any

such case the provisions of this article shall as far as practicable apply

to the supplementary estimates.

The Minister may, acting in accordance with an

appropriation Act, make advances and provide such funds to the

Bureau for carrying out its functions under this Act, in accordance

with such estimates approved in accordance with article 21.

The Bureau shall keep proper books of accounts in such

manner as the Minister, following consultation with the Minister

responsible for finance, may from time to time direct. Such accounts

shall be audited by auditors appointed by the Board of the Bureau with

the concurrence of the Minister from among persons qualified to be

appointed as auditors of a company in accordance with such law which

will be in force in Malta. Such accounts shall moreover be subject to

audit by the Auditor General.

(1)

The Board shall as soon as may be but not later than

three (3) months after the close of each financial year, transmit to the

Minister an annual report consisting of

(a)

a copy of the annual accounts certified by the

auditors; and

(b)

a report on the operations of the Bureau during

the previous financial year.

(2)

The annual report shall be laid on the Table of the House by

the Minister not later than six (6) weeks after its receipt, or where the

House is during that period not in session, not later than the second

week after the House reconvenes.

(1)

The Bureau shall gather, manage and process data

relating to

(a)

suspect persons investigated by the Bureau;

(b)

freezing, seizure and confiscation of property,

including comprehensive data on the effectiveness of the

freezing and seizure of property up to confiscation; and

(c)

assistance in the enforcement of sentences

involving confiscation of property;

(d)

the management of assets;

(e)

the estimated proceeds, the value of seized and

confiscated property and the amount realised from the

administration or sale of such property;

(f)

where property is released, the reasons for the

release.

(2)

The Director shall keep a record of those persons or

categories of persons having access to the data referred to in sub-

article (1) hereof, and shall make such record available to the

Information and Data Protection Commissioner.

(3)

Data retained for the purposes of this Act shall be retained

for a period of fifteen (15) years which period shall be suspended

during the pendency of investigations or litigation to which the said

data is relevant.

(1)

The Director and members of the Board, members of

the Directorate staff and advisors and contractors of the Bureau shall

treat any information acquired through the performance of their duties

under this Act as secret and confidential and shall not disclose the

same to any person other than as necessary for the proper performance

of their duties

Provided that nothing in this sub-article shall be deemed to

preclude the Director or any member of the Directorate Staff acting

under a general or specific authorisation from the said Board to

disclose information to the Attorney General, or any prosecuting

authority, that may be required in the prosecution of offences for a

relevant offence or to any fiscal or supervisory authority established

by or under any other law for the purpose of aiding such other

authority in the carrying out of its functions.

(2)

The Director and members of the Directorate staff shall

keep a record of any disclosure of information made in accordance

with sub-article (1) hereof, indicating the person to whom the

information has been disclosed and where necessary, the date of the

authority to disclose given in writing by the Director

Provided that in urgent cases, authority to disclose may be

given verbally in which case it shall be confirmed in writing as soon as

may be, and in no case later than two (2) working days of the giving of

the verbal authority.

The Bureau, the Board, the Director and members of the

Directorate staff shall not be liable for damages for anything done or

omitted to be done in the discharge or purported discharge of any

function under this Act unless the act or omission is shown to have

been done or omitted to be done in bad faith or through gross

negligence.

PART III

The Civil Court (Asset Recovery Section)

(1)

There shall be established a section of the Civil Court

to be designated the Civil Court (Asset Recovery Section).

(2)

The Civil Court (Asset Recovery Section) shall take

cognisance of cases of any category as are assigned to it by this Act or

by any other law.

(3)

The Civil Court (Asset Recovery Section) shall take

cognisance of cases whatever the value of the matter in dispute if the

case falls in a category of cases assigned to it as provided in sub-article

(2).

Procedures before the Civil Court (Asset Recovery Section)

are of a civil nature and the burden of proof required to establish a

finding shall not be greater than may be required in any other court of

civil jurisdiction as opposed to one of criminal jurisdiction.

Neither the acceptance of any statement before the Civil

Court (Asset Recovery Section) by any person, nor anything filed in a

document before it or anything said in evidence by any person before

it shall be admissible as evidence in any proceedings for any offence

against the person in whose name the statement has been made or

accepted, or in whose name the document has been filed, or against the

person giving evidence

Provided that nothing in this article shall be deemed to

exempt any person from any criminal or other liability resulting from

his or her giving false evidence before the Civil Court (Asset Recovery

Section) or for filing or causing to be filed any document knowing it to

be false.

(1)

Save as otherwise provided in this or any other law,

proceedings before the Civil Court (Asset Recovery Section) shall be

instituted and conducted according to the same procedure as

applicable before the Civil Court First Hall, so however that article

460 of the Code of Organization and Civil Procedure shall not apply

with regard to proceedings before the Civil Court (Asset Recovery

Section).

(2)

The Civil Court (Asset Recovery Section) shall have the

power upon the application of any interested party to

(a)

extend any time limit provided for by this Act;

(b)

decide any matter as to whether the legal

professional privilege provided for in this Act applies to in any

stated circumstances.

No appeal shall lie against decisions of the Civil Court

(Asset Recovery Section) except on a point of law decided in the

appealed judgment or on the basis of an error of fact resulting from the

records of the case.

PART IV

Orders

(1)

Where the Attorney General has reasonable cause to

suspect that a person is guilty of a relevant offence, the said Attorney

General may apply to the Criminal Court for an Order, (hereinafter

referred to as a "Monitoring Order") requiring a bank or other financial

institution licensed to operate in Malta to monitor for a specified

period the transactions or operations carried out through one or more

accounts in the name of the suspect, or through one or more accounts

(a)

suspected to have been used in the commission of

the offence; or

(b)

which could provide information about the

offence or the circumstances thereof; or

(c)

which could provide information as to the

location and the amounts of proceeds of crime, during or after

the commission of the offence.

The Bank or other financial institution on the receipt of such Order

by the Criminal Court shall proceed to monitor the account or accounts

as indicated in the Order, and shall communicate to the Attorney

General the information resulting from the monitoring.

(2)

The application for a Monitoring Order shall be made in

camera and the decision of the Criminal Court in such application

shall likewise be given in camera.

(3)

(a)

Where from the information resulting from the

monitoring of an account or accounts in accordance with a Monitoring

Order made in accordance with sub-article (1) hereof it appears to the

Attorney General that a relevant offence has been committed, and that

such relevant offence may have resulted in proceeds of crime, the

Attorney General shall communicate to the Director the information

resulting from the monitoring.

(b) The Director shall study the information received in terms

of paragraph (a) hereof for the purpose of establishing the quantum of

any proceeds of crime and of their location, and where for such

purpose he deems that any other account or accounts may need to be

monitored in order to gather information for the aforesaid purpose, he

may request the Attorney General to apply to the Criminal Court for

the issue of further monitoring orders in respect of such accounts.

(1)

Where the Attorney General has reasonable cause to

suspect that a person is guilty of a relevant offence, the Attorney

General may apply to the Criminal Court for an Order (hereinafter

referred to as an "Investigation Order") requiring that a person or

persons named in the Order who may be in possession of particular

material or material of a particular description which is likely to be of

substantial value (whether alone or together with other material) to the

investigation or, in connection with the suspect, shall produce or grant

access to such material to the applicant, and by virtue of such an

Investigation Order, the applicant or any person authorised by him

shall have power to enter any house, building or enclosure for the

purpose of searching for such material.

(2)

The provisions of article 16 shall mutatis mutandis apply

with regard to an Investigation Order.

(3)

Where the material subject to an Investigation Order

consists of information contained in a computer, the Investigation

Order shall have effect as an order to produce or give access to such

material in a form in which it can be taken away and in which it is

visible and legible.

(4)

Where in the course of an investigation, pursuant to an order

under this article, the person conducting the investigation has reason to

believe that any person may have information regarding a relevant

offence, the person conducting the investigation shall request a

Magistrate to hear such person on oath, and the Magistrate shall

forthwith hear the person on oath and draw up a procès-verbal

containing such testimony, and the procès-verbal so drawn up and the

evidence therein recorded shall have the same probatory value as a

procès-verbal drawn up and evidence recorded in procedures pursuant

to Title II of Part II of Book Second of the Criminal Code.

(5)

Sub-article (2) of article 33 shall apply to an application for

the issue of an Investigation Order and to the decision of the Criminal

Court with regard to any such application.

(6)

Where an Investigation Order has been carried out, a report

of the result of the investigation shall also be made available to the

Director.

(7)

(a)

Where it appears to the Attorney General that an

Investigation Order may lead to the discovery of material constituting

proceeds of crime or information as to their location, he may request

the court that the person conducting the investigation be accompanied

by the Director.

(b)

The Director may, when accompanying the person

conducting the investigation, enter any house, building or enclosure, or

boarding a craft or vehicle subject to the investigation, in accordance

with sub-article (1), make a record of any material in such house,

building or enclosure or on board the craft or inside the vehicle that

may constitute proceeds of crime, and shall for such purpose have any

such material photographed, weighed, measured and valued by

experts.

(c)

Where the presence of the Director has not been requested

by the Attorney General in accordance with paragraph (a) of this sub-

article and the need for the Director to enter any house, building or

enclosure or to board any craft or vehicle or to conduct any operation

as mentioned in paragraph (b) hereof results to the Attorney General

after the Investigation Order has been carried out, or the Director

informs the Attorney General of such need following the receipt of a

report made available to him in accordance with sub-article (6) hereof,

the Attorney General may request the Court to authorise the person

conducting the investigation to again enter such house, building or

enclosure, or to board such craft or enter such vehicle accompanied by

the Director for the purpose of conducting the operations as are

mentioned in paragraph (b).

(1)

Where the Attorney General has reasonable cause to

believe that a person (hereinafter referred to as "the suspect") is guilty

of a relevant offence, he may apply to the Criminal Court for an order

(hereinafter referred to as an "Attachment Order")

(a)

attaching in the hands of such persons, or in the

hands of third parties having custody of the property of such

persons, as are mentioned in the application (hereinafter

referred to as "the garnishees") all moneys or other movable

property due to or pertaining to the suspect or used by the

suspect;

(b)

requiring the garnishees to declare in writing to

the Attorney General and the Director, not later than twenty-

four (24) hours from the time of service of the order, the nature

and source of all moneys and other movable property so

attached; and

(c)

prohibiting the suspect from transferring or

otherwise disposing of any movable or immovable property.

(2)

Before making an Attachment Order, the Criminal Court

may require to hear the Attorney General in chambers and shall not

make such an Order unless it concurs with him that there is a

reasonable cause as provided in sub-article (1).

(3)

The provisions of article 381(1)(a), (b), (e) and (2) and

article 382(1) of the Code of Organization and Civil Procedure shall

mutatis mutandis apply to the Attachment Order whether issued under

this Act or under any other law in Part One of the Schedule.

(4)

(a)

An Attachment Order shall be served on the

garnishees and on the suspect by an officer of the Executive Police.

(b)

An Attachment Order may also be served on the garnishees

by electronic mail. Where it is so served, the garnishee shall, not later

than one (1) working day from such service, acknowledge receipt by

return electronic mail, and in default of such acknowledgement, a copy

of the Order shall, without prejudice to the validity of the service by

electronic means, be served on the garnishee by an officer of the

Executive Police.

(c)

Unless the Criminal Court otherwise directs, an Attachment

Order shall be served without prior notice to the garnishee.

(5)

An Attachment Order shall, unless it is revoked earlier by

the Attorney General by notice in writing served on the suspect and the

garnishee, cease to be operative on the expiration of six (6) months

from the date it is made, and the Criminal Court shall not make another

Attachment Order with respect to the suspect unless it is satisfied that

there is substantially new information with regard to the relative

relevant offence.

(5A) The provisions of sub-articles (5) and (6) of article 36 shall

apply mutatis mutandis to an Attachment Order.

(5B) When an Attachment Order is withdrawn by the Attorney

General prior to the expiration of its period of validity or no longer

remains in force for any other reason including the lapse of its period

of validity, the Criminal Court shall issue a decree confirming that the

Attachment Order has been revoked or is no longer in force and it shall

order the service of the said decree upon the suspect and all the

garnishees and all those served with the Attachment Order in the manner

as provided for in sub-article (4).

(6)

Where during the period of validity of an Attachment Order,

whether original or extended, the suspect absconds or is for any other

reason away from the island, the period of time during which the

suspect is away from the island shall be added to the period of validity

of the Attachment Order in respect of the said suspect.

(7)

Where the Attorney General applies for the issue of an

Attachment Order as provided in sub-article (1), he may request the

Court issuing the Order to authorise the Director to accompany the

person serving the Attachment Order on the suspect, and upon the

service of the Order on the suspect the Director shall have the right, to

enter, accompanied by an officer of the Executive Police into any

house, building or other enclosure or board any craft or enter any

vehicle, belonging to or used by the suspect, or wherein it is suspected

that the suspect may have property or other assets constituting

property subject to confiscation, and thereat make a record of any

material that may constitute such property. The Director may for such

purpose have such material photographed, weighed, measured and

valued by experts.

(8)

The Director may moreover remove and take possession of

any material referred to in the previous sub-article, and such material

shall remain attached by the Order in the hand of the Director during

the period of validity of the Attachment Order

Provided that where the Director takes possession of any

material as aforesaid he shall not later than one (1) week of taking such

possession inform the Criminal Court of such taking of possession and

request its authority to continue to keep possession of the material

during the period of validity of the Attachment Order. The application

of the Director shall be served on the suspect and on any person from

whose possession the material was removed. The Criminal Court shall

decide the application by decree, and where in its decree it refuses to

grant the request of the Director, in whole or in part, the Director shall

within a term of not more than one (1) week return the material to

which the refusal refers, to the person from whose possession it was

removed

Provided further that any material to which the refusal

refers, shall, unless the said court in its decree otherwise decides,

remain subject to the Attachment Order referred to sub-article (1).

(9)

Where the Attorney General in a request referred to in sub-

article (7) omits to request that the Director accompanies the person

serving the Attachment Order as therein provided, the Director may at

any time during the subsistence of the Attachment Order request the

Criminal Court to authorise him accompanied by an officer of the

Executive Police to enter any house, building or enclosure or to board

any craft or vehicle as is referred to in the said sub-article (7) and

therein conduct the operations referred to in the said sub-article. The

provisions of sub-article (8) shall also apply in the case of an entry by

the Director authorised under this sub-article.

(10) (a)

Where any material is attached in the hands of a

garnishee in virtue of an Attachment Order issued in terms of this

article, the Director may request the Criminal Court to order the

garnishee to transfer all or any material attached in the hands of the

garnishee, to the possession of the Director, within such time as the

said court may in its decree prescribe, and upon such transfer such

material shall remain subject to the Attachment Order in the hands of

the Director.

(b)

Failure by any person to abide by an Order issued under this

sub-article shall constitute contempt of Court and shall be punishable

as such by the Criminal Court

Provided that any punishment that the said court may

impose shall not release the person disobeying such Order from any

liability for damages that his failure to comply with the Order may

incur in favour of any persons.

(11) (a)

Where a commercial going concern or a body

corporate is subject to an Attachment Order, the totality of the assets of

the going concern, including licences and goodwill are to be preserved

and shall not be transferred, and subject to the following provisions of

this sub-article the going concern or a body corporate shall continue to

do business.

(b)

Where a commercial going concern or a body

corporate has been attached by an Attachment Order the Criminal

Court may on application made by the Director and after hearing the

suspect, appoint an Administrator generally for the better preservation

of the asset of the going concern or a body corporate and in particular

to provide for its administration. The provision of article 848B of the

Code of Organization and Civil Procedure shall apply with regard to

an application and the appointment of an administrator under this sub-

article.

(c)

The administrator appointed under this article shall

have the right to such payment as the Criminal Court may, in its

discretion, be of the opinion that is due to the administrator, which

payment shall be effected from the moneys of the going concern or

body corporate. In no event, however, may such payments be made

from funds where there is knowledge or suspicion that the funds are

derived from a criminal activity or are funds which one has cause to

believe have been laundered

Provided that in this paragraph, unless the context otherwise

requires

"criminal activity" shall have the same meaning as assigned to it in

article 2 of the Prevention of Money Laundering Act;

"laundered" shall have the meaning of "money laundering" as

defined in article 2 of the Prevention of Money Laundering Act.

(11A) An administrator appointed in accordance with sub-article

(11) shall

(a)

with immediate effect administer the commercial

going concern or body corporate, and the ordinary

administration of all business and activities including the

management of any outlets, restaurants or other activities and

shall acquire, sell, negotiate and effect all necessary acts of

management and ordinary administration and to take all

necessary measures for the preservation of the assets of the

commercial going concern or body corporate;

(b)

within one (1) month from the service of the

appointment decree, prepare a report, confirmed on oath,

indicating the commercial activity of the commercial going

concern or body corporate including the assets and liabilities

and the actual value of the commercial going concern or body

corporate. Following the initial report, the administrator shall

prepare and file monthly reports;

(c)

submit every administration decision of an

extraordinary nature for the decision of the court; and

(d)

open and manage a bank account with a financial

institution on behalf of such commercial going concern or body

corporate.

(11B) When the court appoints an administrator in accordance

with sub-article (11), a copy of this decree shall be immediately served

on the Director and shall become operative and binding when it is made

and the Director shall cause a notice thereof to be published without

delay in the Gazette.

(12) Where the property subject to an Attachment Order is of a

perishable nature, the person holding the property shall without further

authorisation sell such property, and the Attachment Order shall

continue to apply with respect to proceeds of such sale.

(13) The Director is bound to exercise for the safekeeping of any

property subject to an Attachment Order, held in his possession, such

care as is exercised by a bonus paterfamilias.

(14)

The suspect or the person charged or accused may not

contest the factual basis for the issuing of the order according to this

article or article 36 at the time when the order is issued, except as

provided in paragraph (ii) of sub-article (8) of article 36.

(1)

Where a person is charged with a relevant offence,

the Court shall, at the request of the prosecution, issue an Order,

hereinafter referred to as a "Seizing and Freezing Order", attaching

any property in the hands of third parties for which there is reasonable

cause to believe that the property is subject to confiscation, and

restraining and prohibiting the accused from transferring, pledging,

hypothecating, or otherwise changing or disposing of any such

property and of such other property owned by him or being in his

possession.

(2)

In the case that property which is subject to confiscation

referred to in sub-article (1) cannot be attached or restrained because it

cannot be located, has been mixed with other property, has been

transferred to a third party, is located outside Malta, or cannot for any

other reason be attached or restrained, the Court shall, subject to the

limitations in sub-article (3), include in the Seizing and Freezing Order

a provision attaching and restraining property of equivalent value.

(3)(a) The request for a Seizing and Freezing Order shall be made

by the prosecution either by means of an application indicating the

assets or sum of money or both subject to confiscation in the case of a

conviction, or in the document whereby the charges are made.

(b)

The right of the person charged to contest a

Seizing and Freezing Order shall be as provided in paragraph

(ii) of sub-article (8).

(c)

A third party who establishes that a Seizing and

Freezing Order is causing him immediate and irreparable

prejudice may request the Court to vary the Order to mitigate

such harm to the extent that it is practicable to do so without

adjudicating the issues that the third party would be entitled to

raise at the appropriate time in accordance with article 39.

(d)

The prosecution may request the Court, at any

time during the proceedings, to amend the Seizing and Freezing

Order as provided in paragraph (a), to add or remove property

which is subject to such Order.

(4)(a) If the charge against the person charged or the request made

by the prosecution in terms of sub-article (3)(a) lists the assets that

shall be subject to confiscation in the case of a conviction, or if it

alleges a specific sum of money or both as the property subject to

confiscation, the Seizing and Freezing Order shall be limited to such

specific assets or to property having a value not greater than that sum

of money.

(b)(i) If the charge or the request for the issuing of a Seizing and

Freezing Order against the person charged provides in general terms

that the property of the person charged shall be subject to confiscation,

but does not limit the property subject to confiscation to specific assets

or to a specific sum of money or both, the Court shall issue a Seizing

and Freezing Order sufficient to preserve such property as may be

required to satisfy a confiscation order, up to and including all assets

of the accused, but in any case the Court shall require the prosecution

to establish within ninety (90) days that there is a reasonable basis to

believe that the property shall be subject to confiscation

Provided that the time limit for the prosecution to establish

the property that shall be subject to the Seizing and Freezing Order

may be extended by the Court for another ninety (90) days if the Court

is satisfied that such extension is justified;

(ii)

if the prosecution within the time limits provided in

paragraph (i) limits the property subject to the Seizing and Freezing

Order to specific assets or a specific sum of money or both, the Court

shall, if it deems it appropriate, amend the Seizing and Freezing Order

and the provisions of paragraph (ii) of sub-article (8) shall apply;

(iii) if the prosecution does not within the time limits provided in

paragraph (i) limit the property subject to the Seizing and Freezing

Order to specific assets or to a specific sum of money or both, the

Seizing and Freezing Order shall cease to have effect upon the lapse of

the said time limits and the provisions of sub-article (5B) of article 35

shall apply mutatis mutandis in respect of the accused;

(iv) when a Seizing and Freezing Order ceases to have effect in

accordance with sub-paragraph (iii) the Court shall upon a demand by

application of the person charged or accused issue a decree confirming

that the Seizing and Freezing Order is no longer in force and shall order

service of the said decree upon all persons who were served with the

Seizing and Freezing Order.

(5)(a) The Court may vary a Seizing and Freezing Order upon an

application of the person charged or accused. The said application

shall be served upon the prosecution and upon the Director. Upon such

application the Court shall determine what monies may be paid to or

received by the person charged or accused during the validity of such

Order, to allow him and his family a decent living in a yearly amount

not exceeding the amount established by the Minister by order in the

Gazette and any other amount which the Court considers justified to

meet necessary expenses.

(b)

On a court application of the person charged or

accused served upon the prosecution and the Director, the Court

shall also, subject to such conditions as it deems fit

(i)

determine what moneys may be paid or

received by the person charged or accused during the

validity of a Seizing and Freezing Order to allow him to

carry on any trade, business, profession or occupation;

(ii)

authorise the payment of debts which are

due by the person charged or accused to bona fide

creditors and which were contracted before the Seizing

and Freezing Order was made;

(iii) on good ground, authorise the person

charged or accused to transfer movable or immovable

property.

(c)

In the case that during the proceedings a request

is made for the variation of the Order in terms of paragraph (a)

or (b) which relates to expenses which are recurrent, the Order

allowing the payment of such recurrent expenses shall be

considered as covering such expenses whenever they arise

without the need to file an application every time such expenses

arise.

(6)

Any decision taken by the Court in accordance with this

article shall constitute a provisional measure and shall not prejudice

the merits of the case.

(7)

A Seizing and Freezing Order shall be immediately served

upon the Director and shall

(a)

become operative and binding on all third parties

immediately when it is issued and the Director shall cause a

notice thereof to be published without delay in the Gazette and

also cause a copy thereof to be registered in the Public Registry,

the Land Registry and any other registry established by law for

the registration of property of any kind. A copy of such Order

shall also be served on any person who the prosecution or the

Director may indicate; and

(b)

without prejudice to the other provisions of this

article, remain in force until the final determination of the

proceedings and in the case of a conviction until the sentence

has been executed.

(8)(i) Where the Court of Magistrates does not issue an Order in

accordance with sub-article (1) when requested by the prosecution, the

Court shall instead issue a temporary freezing order having the same

effect. The Attorney General may, within seven (7) working days from

the date of the Court’s decision, file an application before the Criminal

Court to make the required order. The Criminal Court shall grant the

accused seven (7) working days to reply to the application of the

Attorney General. The temporary Freezing Order shall remain in force

until the Criminal Court determines the application.

(ii)

When an order in accordance with sub-article (1) is issued

by the Court of Magistrates, the person charged may within seven (7)

working days from the date of the Court’s decision, file an application

before the Criminal Court requesting the total or partial revocation of

the order, provided that the order shall remain in force until a decision

is given by the Criminal Court. The Criminal Court shall grant the

prosecution and the Director seven (7) working days to reply to the

request of the person charged. The decision of the Criminal Court on

the application shall be delivered within seven (7) working days from

the filing of the replies or from when the time limit for their filing

lapsed.

(9)(a) On the application of the Bureau, the Civil Court (Asset

Recovery Section) shall order the sale during the proceedings and

without awaiting a final judgment of any property which has been

seized or frozen in terms of this article if that Court finds that

(i)

the property is perishable or at risk of

deterioration, decay, damage or depreciation in value;

(ii) the expense of keeping the property is excessive

or disproportionate to its fair market value when one also takes

into consideration the time likely to determine whether the

property shall be subject to forfeiture or to a confiscation order;

(iii) the property is subject to a loan or other right over

property or to taxes on which the owner is in default of his

obligations; or

(iv)

there is any other valid reason for the sale

Provided that the Court may in its discretion, deny a request

to order the sale if it finds that the property possesses such unique

characteristics that its sale would constitute an irreplaceable loss to the

property owner should the property ultimately be found not to be

subject to confiscation.

(b)

The proceeds of any sale pursuant to this sub-article shall

be held in an account maintained by the Bureau and shall serve as a

substitute res in any ensuing criminal or non-conviction based

confiscation proceeding.

(c)

The Court shall decide on the request of the Bureau in

accordance with this sub-article within thirty (30) days from the date

when the request is made. The decree shall be subject to a right of

appeal by the aggrieved party on points of law and such appeal shall

be filed in the Court of Appeal within seven (7) working days from

the date of the decree. The party against whom the appeal is filed

may file a reply within seven (7) working days from the service of

the appeal. The Court of Appeal shall decide the appeal within thirty

(30) days from the conclusion of the written pleadings.

(10) The provisions of sub-articles (7) to (13) of article 35 shall

mutatis mutandis apply in the case of a Seizing and Freezing Order

issued in accordance with this article and to any order to which the

provisions of this article apply.

(11) Where a Seizing and Freezing Order, as issued or as varied,

is limited to specific property, the other property of the defendant shall

not be considered as being subject to such Order.

Where after a person has been charged with a relevant

offence, such person absconds, or dies, or where because of his illness

procedures against him cannot be brought to a conclusion, any order

made by a Court under this Part of this Act shall upon an application

made for the purpose to that effect by the Attorney General or by the

Director remain in force until procedures in terms of article 42 have

been concluded by the Civil Court (Asset Recovery Section) .

PART V

Special Procedures Before The Civil Court (Asset Recovery Section)

(1)

When a Court of criminal jurisdiction sentences a

person convicted of a relevant offence, it shall include in its sentence

an order, hereinafter referred to as a "confiscation order", confiscating

any property which the Court determines, on a balance of

probabilities, to be property subject to confiscation, as defined in

article 3(6), as a consequence of the conviction.

(2)

After conviction but before determining what property is

subject to confiscation and before giving judgment the Court shall

order the Director or the prosecution to submit a list of assets subject

to confiscation.

(3)

The accused may contest the list of assets subject to

confiscation by means of an application filed within one (1) month

from the submission of the said list. The Court shall serve the

application upon the Attorney General for a reply to be filed within a

month (1). The Court shall hear the prosecution and the accused and

shall in the judgement decide which property shall be subject to the

confiscation order.

(4)

If the Court finds that any part of the property subject to

confiscation is unavailable, it shall make a confiscation order in the

judgment for a sum of money equal in value to the unavailable

property. At any time after the issuance of such an order for a sum of

money, the Court, upon the application of the Attorney General, may

make an order confiscating any other property of the person convicted

to satisfy the judgement in whole or in part.

(5)

Any confiscation order made in accordance with this article,

including an order in the form of a judgement for a sum of money, may

be appealed together with the appeal from the conviction and sentence

Provided the time limit for filing an appeal from the

conviction shall commence to run from the date when the judgement

which includes the confiscation order is delivered.

(6)

The Court shall issue an order confiscating property

pursuant to this article based solely on its finding that the property is

subject to confiscation and without regard to the ownership or the

rights of any third parties over the property. All issues regarding the

rights of third parties shall be determined in separate proceedings in

accordance with article 39. Accordingly, third parties may not

participate in the determination of which property is subject to

confiscation in accordance with this article.

(7)

The issuance of a confiscation order in accordance with this

article is mandatory, except that in the case of facilitating property and

property involved in money laundering other than the proceeds of the

predicate offence, the Court shall limit the confiscation to the extent

necessary to ensure that the confiscation is not grossly

disproportionate to the gravity of the offence giving rise to the

confiscation.

(8)

For the purpose of being assisted in the identification and

location of property subject to confiscation, in the calculation of the

amount of a judgement for a sum of money, or in the identification of

property that may be needed to satisfy such a judgment, the Attorney

General may apply for an order pursuant to articles 34 and 35.

(9)

Pending a determination by the Court that the property is

subject to confiscation, or that a property shall be needed to satisfy a

confiscation judgement, any property of the person convicted or of a

third party may be attached, frozen or seized in accordance with

articles 35 and 36, if the Court, upon the application of the Attorney

General, finds that there are reasonable grounds to believe that the

property may be found to be subject to confiscation.

(10) When more than one person is convicted of an offence, each

convicted person shall be jointly and severally liable for the total

proceeds of crime obtained by any of them

Provided that

(a)

the Government may not recover more than the

total proceeds of the offence; and

(b)

in the case of a convicted person whose role in the

offence was incidental in comparison with the roles of the other

convicted persons, the Court shall consider the extent to which

making such person jointly and severally liable for the total

proceeds of the crime would be grossly disproportionate to the

role of that person in the offence.

(1)

Where any person claims that he is the owner of any

property subject to a Seizing and Freezing Order in accordance with

Part IV, or claims that he has rights over such property, or claims that

he is the owner of any property subject to confiscation in accordance

with article 38, that person may apply to the Civil Court (Asset

Recovery Section) to declare that the said property belongs to him, or

that he has the rights claimed over such property, and the Court shall,

upon being satisfied through the proof produced by such person that

the applicant is the owner of the property, as that term is defined in

article 2, declare the property to belong to the applicant and no longer

subject to the Seizing, Freezing or Confiscation Order, and where the

Court is in like manner satisfied that the applicant has rights over the

property, it shall declare the property seized, frozen or confiscated as

being subject to those rights.

(2)

(a)

The Court shall not be satisfied that any property

which was in the possession of, or enjoyed by the convicted person,

belongs to the applicant, if the title to that property was required by

law to be registered, and was not, without just cause to be proved by

the applicant registered before the commencement of proceedings

against the convicted person.

(b)

The provision of paragraph (a) shall also apply where the

title was registered before the commencement of proceedings, but after

a date when the convicted person knew, or reasonably may be

presumed to have known, that he was being investigated or

prosecuted.

(3)

(a)

If the property is found to be the proceeds of crime,

no third-party objection to the Seizing, Freezing or Confiscation of the

property may be made except for the objection of a bona fide

purchaser for value as described in sub-article (4).

(b)

Without prejudice to any proceedings which may be taken

for non-conviction based confiscation under Part VIII, if the property

is facilitating property or is property involved in a money laundering

offense other than the proceeds of crime, no third-party objection to

the Seizing, Freezing or Confiscation of the property may be made

except for the objection of a bona fide purchaser for value as described

in sub-article (4), or of a third-party who was the owner of the property

before or at the time of the offence giving rise to the Seizing, Freezing

or Confiscation of the property

(4)

Where the applicant claims that he acquired the property or

right thereon by onerous title or in a commercial transaction, he shall

be required to prove that he paid the fair price thereof in an arm’s

length transaction, and that he has no reason to believe that the

property was subject to confiscation at the time that he acquired his

interest in it.

(5)

Where the property consists of immovables and the

applicant claims that there is a promise of sale relative to it, made prior

to the proceedings which led to the conviction of the convicted person,

the Civil Court (Asset Recovery Section) shall at the choice of the

Director

(a)

allow the sale to proceed on condition that the

proceeds of the sale shall be deposited by the applicant in the

registry of the Civil Court (Asset Recovery Section) and the

sum so deposited shall be subject to the Seizing and Freezing

Order, in lieu of the property sold in accordance with the

promise of sale agreement; or

(b)

give the Director the right to have the property

transferred to the name of the Government, on the same terms

as provided in the promise of sale, on condition that the

Director pays to the applicant a fair and reasonable

compensation not being more than five percent (5%) of the

Court may determine.

(6)

In its assessment of the proof brought by a third party

claiming property or rights thereon in accordance with this article, due

regard shall be given by the Court of the family, business or other

relationship between the convicted person and the applicant, the use

being made of the property including the identity of the person who

exercised dominion and control over the property, the identity of the

person who paid the insurance, taxes, and maintenance expenses of the

property and the source of such payments, the means of the person

claiming the property, and all other circumstances that may affect the

credibility of the claim.

(7)

In respect of property confiscated by a judgement of a Court

of Criminal Jurisidction in terms of article 38, an action by a third party

under this article shall be filed by not later than six (6) months from the

date of the final judgement ordering confiscation. If no action is filed as

aforesaid the confiscation of property shall become final and cannot be

challenged.

(1)

Where it appears to the Director that any property in

the hands of or in the name of a person, other than the convicted

person, in fact belongs to the convicted person and not to the person

holding the property or in whose name it is held, the said Director may

by application filed in the Civil Court (Asset Recovery Section)

against the person holding the property or in whose name it is held

request the said Court to declare that the property does not belong to

such person but to the convicted person.

(2)

The Director shall produce all evidence in support of his

request and the provisions of sub-article (6) of article 39 shall be

applied by the Court in assessing the evidence brought before it.

(3)

The Director may not make an application under this section

after the lapse of ten (10) years from the date of the judgment

convicting the convicted person of the relevant offence or from the

date on which it is established that the proceedings cannot be

concluded because of the death or illness of the accused or because the

accused has absconded.

(4)

Where the property subject to confiscation is jointly owned

by the convicted person and a third party, the court shall determine the

most effective means of allowing the government to confiscate the

interest of the convicted person without prejudice to the rights of the

third party. Such means may include ordering the sale of the property

and the division of the proceeds of the sale between the Government

and the third party.

(1)

Applications in terms of sub-article (5) of article 36

and any application to vary an Attachment Order or a Seizing and

Freezing Order shall be served on the Director and, unless the

applicant is not the accused, on the accused. Such applications shall be

heard with urgency and the Court may order that the terms for any

reply or other procedures be shortened.

(2)

In determining any payment allowed to be made to the

suspect or to the accused in terms of sub-article (5A) of article 35 or of

sub-article (5) of article 36 the Court shall take into consideration the

actual needs of the suspect or the accused and the availability of other

means for his subsistance.

(1)

Where after a person has been charged with a

relevant offence, such person absconds or dies, or where because of his

illness proceedings against him cannot be brought to a conclusion, the

Director may bring an action before the Civil Court (Asset Recovery

Section) to declare that on the basis of the evidence produced before

the Court by the Director, the trial, had it come to a conclusion, would

have resulted in a conviction.

(2)

An action for a declaration in accordance with sub-article

(1) may also be brought where the suspected person has not been

charged, because he dies or absconds before the prosecution may

charge him

Provided that no action may be commenced on the basis of

this article, after the lapse of six (6) years from the date of death of the

suspected person, or the date when it is discovered that he has

absconded.

(3)

An action on the basis of sub-articles (1) and (2) shall be

brought against the heirs of the accused, if dead, or against curators

nominated to represent the accused or, where applicable the accused’s

lawful representative who may in each case produce such witnesses

and produce all evidence at their disposal to rebut the claims of the

Director.

(4)

A declaration in terms of sub-articles (1) and (2) shall, for

the purposes of article 38, be deemed to be a conviction, but shall not

give rise to consequences of a criminal nature.

(5)

For the purposes of an action under article 38 on the basis of

a judgment in terms of this article, the term of one year referred to in

sub-article (2) of the said article 38 shall run from the date when the

judgment in the action in accordance with sub-articles (1) and (2) has

become res judicata.

PART VI

Non-conviction Based Confiscation

(1)

Without prejudice to sub-article (2), this Part

establishes preventive measures consisting of non-conviction based

confiscation, which provide for the recovery of property subject to

confiscation in situations where, in the judgment of the Attorney

General, it is not necessary or rather it is not appropriate to recover

such property through a conviction based confiscation as part of a

criminal prosecution, in any of the following cases

(a)

where the perpetrator absconds or is not in Malta;

(b)

where the perpetrator is dead; or

(c)

where the perpetrator dies prior to the conclusion

of the criminal proceedings.

(2)

Property subject to confiscation under this part of this Act is

property which, in any of the cases referred to in sub-article (1), is the

proceeds derived from the following categories of crimes

(a)

a crime or crimes specified in Article 3(1)(a) of

the United Nations Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances adopted on the

19th December 1988 in Vienna reproduced (in the English

language only) in the First Schedule to the Prevention of Money

Laundering Act;

(b)

terrorism, and funding of terrorism, money

laundering, illegal dealing in arms and armaments, trafficking

of persons, and any other crime liable in Malta to a punishment

of imprisonment of not less than ten (10) years;

(c)

any crime committed within the framework of a

criminal organisation within the meaning of Council

Framework Decision 2008/841 JHA of the 24 th October 2008

on the fight against Organised Crime.

(d)

any violation of any international sanction

imposed by the United Nations, the European Union, or other

international body whose authority to impose such international

sanctions is recognized in Maltese law.

(1)

The Civil Court (Asset Recovery Section) shall be

competent to hear and determine all matters arising under this Part if

the property subject to confiscation is found in Malta or if the offence

giving rise to the confiscation occurred in Malta.

(2)

Actions under this Part shall be actions in rem against the

property subject to confiscation and not against individuals. The

burden of proof required in proceedings under this Part shall be that

applicable in civil law proceedings.

(3)

The Government may commence an action under this Part

to recover any property subject to confiscation. In such a proceeding,

the Government is the plaintiff, the property shall be designated as the

res subject to confiscation, and persons contesting the confiscation are

interveners who may intervene in the action upon showing that they

have an ownership interest in the property.

(4)

The burden of proof shall be on the intervener to establish

an ownership interest in the property and to establish any affirmative

defence under article 49. Otherwise, the burden of proof shall be on

the Government.

Public authorities implementing this Part shall be guided by

the following principles

(a)

the respect for fundamental human rights and

freedoms as enshrined in the Constitution of Malta and in the

European Convention Act;

(b)

the use of preventive measures consisting of non-

conviction based confiscation of property provided in this Part

shall be subject to the requirements of necessity in a democratic

society and proportionality;

(c)

confidentiality in conducting any special

arrangements provided for by this Part;

(d)

increasing and protecting public security and

preventing unjustified enrichment from criminal activity.

(1)

Preventive measures provided for under this Part

shall be applicable in combination or separately.

(2)

The procedure for implementing preventive measures

provided for under this Part is independent of the institution of

criminal proceedings but may be employed in conjunction with or

parallel to criminal proceedings.

(3) If a property frozen or confiscated under this Part is also

subject to freezing or confiscation under any criminal law in a pending

criminal case, the Civil Court (Asset Recovery Section) shall order the

suspension of the freezing or confiscation under this Part, either ex

officio or at request of the Attorney General or of any interested party.

The suspension shall end when the Civil Court (Asset Recovery

Section) rules on the withdrawal or the extinction of the measure

which gave rise to the suspension.

In addition to the authority to bring a non-conviction-based

confiscation action against property that is found in Malta, the

Government may exercise such an action against property located

outside of Malta, if the property would be subject to confiscation in

terms of article 43(2)(a) if the property were found in Malta. In such a

case, the Courts of Malta shall have the authority to issue an

appropriate confiscation order, and the Attorney General shall have the

authority to request the central authority in the country where the

property is located, to register and enforce the order in accordance

with that country’s domestic laws and any applicable international

agreements.

(1)

The Government may commence an action under this

Part by filing an application for Confiscation in the Civil Court (Asset

Recovery Section)

(a)

at the time it files its application, the Government

must provide notice thereof to any person who appears to have

an ownership interest in the property subject to confiscation.

Where such parties are known and are present in Malta, the

Court shall order that they be served with the said notice by an

officer of the court;

(b)

if the Government is unable to obtain a valid

address for a person entitled to notice under paragraph (a), it

must provide notice by publication in the Gazette and in two (2)

daily newspapers or on the internet in such manner as the Court

may direct.

(2)

A party contesting the confiscation of the property ("the

intervener") must file a reply setting forth his ownership interest in the

property and the time and manner in which he acquired such interest.

The reply must be filed within thirty (30) days of the date when the

Government served or published notice of the application for

confiscation or such other time as the Court may direct.

(3)

At any time before or after the filing of an application for

confiscation, the Government may seek to seize or freeze property

subject to confiscation pursuant to article 36 which shall apply mutatis

mutandis to this Part.

(4)

(a)

If the Government contests the reply of any

intervener for failure to establish an ownership interest in the property,

prior to any other matter, the Court shall first determine whether the

intervener has established his ownership interest.

(b)

Notwithstanding any title to the property, the Court shall not

be satisfied that the intervener has an ownership interest in the

property if it finds that the intervener is a nominee who did not

exercise effective dominion and control over the property, or otherwise

did not prove rights of ownership consistent with real ownership.

(5)

(a)

If no one files a valid claim to the property in the

form of a reply to the application, the Court must enter a Confiscation

Order upon finding that the Government complied with the procedure

for providing notice to potential claimants.

(b)

Otherwise, if a valid claim is filed, the Court shall issue a

Confiscation Order if it determines that

(i)

on a balance of probabilities, the Government has

established that the property is subject to

confiscation; and

(ii)

no intervener has established an affirmative

defence in terms of article 49.

(c)

In determining whether the Government has met its

burden of establishing that the property is subject to confiscation, the

Court may consider any evidence relevant to that determination

submitted by the intervener. The Court shall postpone determining

whether the intervener is able to establish an affirmative defence in

terms of article 49 until it has found that the property is subject to

confiscation.

(6)

To the extent that the property subject to confiscation

includes property other than the proceeds of crime, the Court must

ensure that the confiscation of such property is not grossly

disproportional to the gravity of the offence or offences giving rise to

the confiscation order.

(1)

If the Court finds that the Government has met its

burden of showing that the property is subject to confiscation, the

intervener may show that he is an owner of the property and that the

property should be exempt from confiscation for one of the following

reasons

(a)

that the intervener acquired his ownership interest

in the property as a bona fide purchaser for value as described

in article 39(4); or

(b)

if the property is facilitating property or is

property involved in a money laundering offence other than the

proceeds of crime, that the intervener was the owner of the

property before or at the time of the offence giving rise to the

confiscation of the property and did not know of the illegal use

of the property, or upon learning of the illegal use, took all

reasonable steps to prevent it.

(2)

The intervener bears the burden of proof on the affirmative

defences described in sub-article (1).

(1)

The decision acceding or disallowing the

confiscation shall be revised by the issuing court at the request of the

proposing authority, or at request of any other interested party, within

five (5) years from when it becomes final when

(a)

new evidence is presented which, had it been

adduced at the trial, would have been decisive for the ruling;

(b)

new facts and evidence are discovered which

would preclude the existence of conditions for the application

of the confiscation measure;

(c)

the confiscation ruling was based on deceptive or

false evidence.

(2)

The revision process shall be carried out by the Court which

issued the confiscation decision presided by a different judge or

judges.

(1)

The property confiscated by court ruling, pursuant to

this Part, shall be transferred to the Government when the confiscation

ruling becomes final.

(2)

The registrar of the competent court shall transmit the final

confiscation ruling to the Bureau within three (3) days.

(3)

In the event that the final confiscation ruling is later

overturned, the owner or the possessor of the property shall be

compensated within the limits of the property market value.

In order to guarantee public safety and the proportionality of

any preventive measure, all decisions and actions taken by the

authorities pursuant to this Part shall be treated with priority, without

unjustified delays and within the stipulated time frames.

Judgments of the Civil Court (Asset Recovery Section)

shall be enforceable in accordance with the provisions of Title VII of

Part I of Book Second of the Code of Organization and Civil

Procedure and every person may secure his rights in any matter within

the competence of the Civil Court (Asset Recovery Section) by the

issue of precautionary acts mentioned in Title VI of Book Third of the

said Code.

PART VII

International Cooperation

The Bureau shall establish relations with equivalent

institutions outside Malta and shall in accordance with such rules of

European Union law, or in accordance with such applicable treaties,

conventions or agreements, by whatever name called, co-operate with

such institutions and collaborate and participate in such structure that

may be established under such rules, treaties, conventions or

agreements.

(1)

Where pursuant to and in accordance with any treaty,

convention or agreement, applicable to Malta, or where in accordance

with European Union Law, a request is made to the Attorney General

or the Director for the monitoring of any account, the investigation of

any matter, the attachment of any property or the seizure and freezing

of any property in Malta, by a judicial, prosecuting or administrative

authority of any place outside Malta, in connection with the

investigation or prosecution of an equivalent offence, or in connection

with the enforcement of a judgment relative to an equivalent offence,

the Attorney General or the Director as the case may be may request

the Criminal Court to make a Monitoring Order, or an Investigation

Order, an Attachment Order and, or, a Seizing and Freezing Order, in

accordance with and having all the effects as provided in Part IV as if

the equivalent offence were a relevant offence.

(2)

For the purpose of this Part an "equivalent offence" is an

offence under the law of the judicial, prosecuting or administrative

authority making the request, by whatever name called, which had it

been committed in Malta would constitute a relevant offence.

(1)

A confiscation order made by a court outside Malta

shall be enforceable in Malta in accordance with the following

provisions of this article.

(2)

Where the Director in accordance with European Union

Law or with such applicable treaties, conventions or agreements,

applicable to Malta by whatever name called, receives a request by a

judicial or prosecuting authority of any place outside Malta for the

enforcement in Malta of a Confiscation Order made by a competent

court of criminal or civil jurisdiction in that place (hereinafter referred

to as a "Foreign Confiscation Order") the Director may bring an action

in the Civil Court (Asset Recovery Section) by an application

containing a demand that the enforcement in Malta of the Foreign

Confiscation Order be ordered.

(3)

The Director shall attach to the application a copy of the

relevant Foreign Confiscation Order, (and where such order is in a

language other than Maltese or English, together with a translation of

the Order into Maltese or English) together with such documents in

support of the demand as it may be in his power to produce and shall

indicate in his application the names of all the witnesses he intends to

produce, stating in respect of each the proof which he intends to make.

(4)

The application shall be served on the person whose

property the Foreign Confiscation Order purports to confiscate who

shall file his reply within fifteen (15) days after the date of the service

of the application. The reply shall contain a list of the witnesses which

the respondent intends to produce stating in respect of each the proof

which he intends to make and such documents as it may be in his

power to produce.

(5)

The Court shall without delay set down the application for

hearing at an early date, which date shall in no case be later than thirty

(30) days from the date of filing of the application or the date of its

service in accordance with sub-article (4), whichever is the later.

(6)

In entering orders to enforce the Foreign Confiscation

Order, the Court shall be bound by the findings of fact to the extent

that they are stated in the foreign order. The Court, however, shall not

order the enforcement in Malta of the Foreign Confiscation Order if

(a)

the respondent was not notified of the

proceedings which led to the making of the relevant Foreign

Confiscation Order, and did not have an adequate opportunity

to contest the making of the said Order;

(b)

the Foreign Confiscation Order was obtained by

fraud on the part of any person to the prejudice of the

respondent;

(c)

the Foreign Confiscation Order contains any

disposition contrary to the public policy or the internal public

law of Malta; or

(d)

the Foreign

Confiscation

Order

contains

contradictory dispositions;

(e)

the Foreign Confiscation Order is based on a

manifest error of law or of fact.

(7)

A decision by the Court ordering the enforcement of a

Foreign Confiscation Order shall have the effect of confiscating in

favour of the Government of Malta all things and property whatsoever

situated in Malta the confiscation of which was ordered in the Foreign

Confiscation Order, subject to any direction which the Minister may

give providing for the further disposal of the things or property so

confiscated.

(8)

The decision ordering the enforcement of a Foreign

Confiscation Order which provides for the confiscation of immovable

property shall have the effect of transferring that immovable property

to the Government of Malta, and for the purposes of article 239 of the

Code of Organization and Civil Procedure the Director shall be

considered as the interested party that may obtain the registration of

the transfer.

(9)

The decision ordering the enforcement of a Foreign

Confiscation Order providing for the confiscation of unspecified

property the value of which corresponds to proceeds of crime shall,

upon being registered in the Public Registry, create as from the date of

registration a general hypothec in regard to the debt amounting to the

value of such proceeds. The value of such proceeds shall be

determined by application before the Civil Court (Asset Recovery

Section) served on the owner of the property to be confiscated, in

accordance with the provisions, mutatis mutandis, of article 38.

(10) Where the Foreign Confiscation Order relates to the

confiscation of a sum of money, expressed in a currency other than the

euro, the sum to be confiscated shall be the equivalent of such sum in

euro, in accordance with the rate of exchange established by the

Central Bank of Malta, operative on the date of the decision ordering

the enforcement.

(11) The Director may, in order to secure any of the property

which the Foreign Confiscation Order refers to, or the value of such

property, apply to the Civil Court (Asset Recovery Section) for the

issue of any of the precautionary acts referred to in article 830 of the

Code of Organization and Civil Procedure.

(12)

For the purposes of this article

"Confiscation Order" includes any judgment, decision,

declaration or other order made by a court outside Malta

providing or purporting to provide for the confiscation or

forfeiture of property subject to confiscation, whether

conviction based or non-conviction based;

"equivalent offence" means any act or omission by any

name called which if committed in Malta would constitute a

relevant offence; and

"proceeds of crime" has the same meaning as assigned to

it in article 3, as if any reference therein to relevant offence

were a reference to equivalent offence.

PART VIII

Regulations, Offences and Penalties

The Minister may make regulations for the better execution

of the provisions of this Act and without prejudice to the generality of

the foregoing to further regulate the executive procedures and

precautionary acts mentioned or referred to in this Act and in

particular to provide

(a)

for the better custody of things seized in

accordance with such warrants;

(b)

for the manner in which judicial sales by auction

are to be conducted and in particular the publicity given to such

sales both in Malta and abroad, the place where they are to be

held, the participation of persons in the auction by means of

electronic means, and providing for the sales to be conducted

also with the assistance of a qualified auctioneer; and

(c)

for any other matter intended to secure that the

best price on the market can be achieved through a sale by

auction.

Whosoever discloses information acquired through the

performance of his duties under this Act, other than as provided in

article 26, shall be guilty of an offence against this article and shall, on

conviction, be liable to a fine (multa) not exceeding twelve thousand

euro (€12,000) or to imprisonment not exceeding twelve (12) months

or to both such fine and imprisonment.

(1)

Whosoever shall fail to provide information

requested by the Director or a member of the Directorate staff in

accordance with article 16 within the time, original or extended, as

provided in that article, shall be guilty of an offence against this Act,

and shall on conviction be liable to a fine (multa) not exceeding twelve

thousand euro (€12,000) or to imprisonment not exceeding one (1)

year or to both such fine and imprisonment.

(2)

Moreover, in its judgment, the court may at the request of

the Director order the person found guilty to provide the information

within such time as it may determine in its judgment, failing which the

person so ordered shall be guilty of a further offence against this Act,

and shall be liable on conviction of a further fine (multa) of not less

than twenty five euro (€25) and not exceeding two hundred and fifty

euro (€250) for each day of delay in providing the information within

the terms as established by the court in its order.

(3)

Any appeal from the judgment containing an order as

provided in sub-article (2) hereof shall not suspend the running of the

time for the provision of information, as may have been established by

the order.

Where a Monitoring Order, an Investigation Order or an

Attachment Order, has been made or applied for, whosoever, knowing

or suspecting that the monitoring or investigation is taking place or

that a Monitoring Order, an Investigation Order or an Attachment

Order has been made or applied for, or makes any disclosure likely to

prejudice the monitoring operation, or the investigation or the

operation of the Attachment Order shall be guilty of an offence against

this article and shall, on conviction, be liable to a fine (multa) not

exceeding twelve thousand euro (€12,000) or to imprisonment not

exceeding twelve (12) months or to both such fine and imprisonment

Provided that in proceedings for an offence under this article

it shall be a defence for the accused to prove that he did not know or

suspect, and that in the circumstances of the case he could not

reasonably be expected to know or suspect, that the disclosure was

likely to prejudice the monitoring operation, the investigation or the

operation of the Attachment Order.

Any person who, having been ordered to produce or grant

access to any material in accordance with an Investigation Order shall,

without lawful excuse, the proof of which shall lie on him, wilfully

fails or refuses to comply with the Investigation Order or who shall

wilfully hinder or obstruct any search for such material, shall be guilty

of an offence against this article and shall, on conviction, be liable to a

fine (multa) not exceeding twelve thousand euro (€12,000) or to

imprisonment not exceeding twelve (12) months or to both such fine

and imprisonment.

Any person who acts in contravention of an Attachment

Order or a Seizing and Freezing Order shall be guilty of an offence

against this article and shall on conviction be liable to a fine (multa) of

not exceeding twelve thousand euro (€12,000) or to imprisonment not

exceeding twelve (12) months or to both such fine and imprisonment,

and where the offence consists in the payment, transfer or delivery to

any person by the garnishee of any moneys or other property attached

seized or frozen by the orders the fine shall in no case be less than

twice the value of the payment made or the property transferred or

delivered, even where such fine will exceed the said sum of twelve

thousand euro (€12,000).

(1)

Fines inflicted in accordance with this Part shall as to

one third of their amount be enforceable as and shall constitute a civil

debt in favour of the Government, and shall be recoverable by the

Director.

(2) Where an offence under this Part has been committed by a

person who at the time of the said offence was a director, manager or

secretary or other principal officer of a body corporate or is a person

having power of representation of such body or having authority to

take decisions on behalf of that body or having authority to exercise

control within that body and that offence was committed for the

benefit, in part or in whole, of that body corporate, the said person

shall for the purpose of this Part be vested with the legal representation

of the said body corporate which shall be liable to the payment of a

fine (multa) of not more than one hundred thousand euro (€100, 000)

Provided that where legal representation no longer vests in

the said person, for the purpose of this article, legal representation

shall vest in the person occupying the office in his stead or in such

person as is referred to in this article.

PART IX

Transitory Provisions

* The Schedule to this Act may be amended by regulations

made by the Minister. The enactments in Part One in the Schedule to

this Act may be repealed or amended insofar as they make provision in

respect of matters also provided for in this Act in the manner as

provided in the Part Two of the said Schedule

Provided that nothing in this Act shall be interpreted as

derogating, limiting or restricting any powers provided for under the

laws listed in Part One of the Schedule

† Any attachment order, freezing order, investigation order,

monitoring order, seizure or other order made in relation to any

investigation of a relevant offence or to criminal proceedings before the

coming into force of this Act shall after the coming into force of this Act

continue to have effect and to be regulated by the law under which it was

issued and shall not be affected by the provisions of this Act.

*This article was originally numbered as article 66.

†This article was originally numbered as article 69.