Chapter

Appendix VIII. Legislative Examples: Common Law Countries

Author(s):
International Monetary Fund
Published Date:
August 2003
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Arrangement of Sections1

  • 1. Definitions

  • 2. Offenses

  • 3. Liability of Legal Entities

  • 4. Jurisdiction

  • 5. Investigations

  • 6. Rights of an Offender

  • 7. Notification of Other States

  • 8. Freezing of Funds

  • 9. Forfeiture

  • 10. Sharing of Forfeited Funds

  • 11. Giving Effect to United Nations Security Council Resolutions

  • 12. Extradition

  • 13. Mutual Legal Assistance

  • 14. Temporary Transfer

  • 15. Alternative Remittance Systems

  • 16. Refusal of Applications for Registration and Revocation of the Registration of Charities Linked to Terrorist Groups

Section 1. Definitions

In this Part:

(1) the term “funds” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travelers checks, bank checks, money orders, shares, securities, bonds, drafts, and letters of credit;

(2) the term “state or government facility” means any permanent or temporary facility or conveyance that is used or occupied by representatives of a state, members of a government, the legislature, or the judiciary, or by officials or employees of a state or any other public authority or entity or by employees or officials of an intergovernmental organization in connection with their official duties;

(3) the term “proceeds” means any funds derived from or obtained, directly or indirectly, through the commission of an offense set forth in Section 2;

(4) the term “provides” includes giving, donating, and transmitting;

(5) the term “collects” includes raising and receiving;

(6) the term “treaty” means:

  • (a) the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on December 16, 1970;

  • (b) the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on September 23, 1971;

  • (c) the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973;

  • (d) the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979;

  • (e) the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on March 3, 1980;

  • (f) the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on February 24, 1988;

  • (g) the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988;

  • (h) the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on March 10, 1988; or

  • (i) the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997;

(7) the term “national of [country]” has the meaning given that term in [reference to the appropriate section of the nationality or citizenship act];

(8) the term “state” has the same meaning as that term has under international law, and includes all political subdivisions thereof; and

(9) the term “Court” means [name of the court charged with considering and issuing freezing and forfeiture orders].

Section 2. Offenses

(1) A person commits an offense under this section if that person, by any means, directly or indirectly, unlawfully and willfully provides or collects funds with the intention that such funds be used, or with the knowledge that such funds are to be used, in full or in part, in order to carry out—

(a) an act which constitutes an offense within the scope of a treaty specified in subsection (6) of Section 1, or

(b) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

(2) A person commits an offense under this section if that person attempts or conspires to commit an offense under subsection (1).

(3) A person commits an offense under this section if that person—

(a) participates as an accomplice in an offense set forth in subsection (1) or (2);

(b) organizes or directs other to commits an offense as set forth in subsection (1) or (2);

(c) contributes to the commission of one or more of the offenses as set forth in subsection (1) or (2) by a group of persons acting with a common purpose, provided, however, that such contribution is intentional and—

  • (i) is made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offense set forth in subsection (1) or (2); or

  • (ii) is made in the knowledge of the intention of the group to commit an offense as set forth in subsection (1) or (2).

(4) A person commits an offense under this section if that person, directly or indirectly, makes available funds, financial assets or economic resources or financial or other related services—

(a) intending that they be used by, or knowing or having reasonable grounds to believe that they will be used, in whole or in part, for benefiting any person who is carrying out or facilitating, or is intending to carry out or facilitate, an offense set out in subsection (1) or (2); or

(b) knowing or having reasonable grounds to believe that, in whole or in part, they will be used by or benefit persons or entities carrying out or facilitating, or intending to carry out or facilitate, an offense set out in subsection (1) or (2).2

(5) For an act to constitute an offense set forth in this section, it shall not be necessary that the funds or other resources were actually used to carry out an offense set forth in paragraph (a) or (b) of subsection (1).

Section 3. Liability of Legal Entities

Where an offense set forth in Section 2 is committed by a person responsible for the management or control of a legal entity located in [country] or organized under the laws of [country], that entity, in circumstances where the person committed the offense while acting in that capacity, is guilty of the offense, notwithstanding—

(a) any criminal liability that may have been incurred by an individual that was directly involved in the commission of the offense; or

(b) any civil or administrative sanction that may have been imposed by law on the entity.

Section 4. Jurisdiction

EXAMPLE ONE

Where a person is alleged to have committed an offense under Section 2, proceedings in respect of that offense may be commenced in [country], where the alleged offense—

(a) was committed by a national of [country];

(b) was committed on board a vessel flying the flag of [country];

(c) was committed on board an aircraft that—

  • (i) was operated by the government of [country]; or

  • (ii) was registered in [country];

(d) was directed toward or resulted in the carrying out of an offense under Section 2 in [country] or against a national of [country];

(e) was directed toward or resulted in the carrying out of an offense under Section 2 against a state or government facility of [country] outside [country], including diplomatic or consular premises of [country];

(f) was directed toward or resulted in the carrying out of an offense under Section 2 committed in an attempt to compel [country] to do or refrain from doing any act; or

(g) was committed by a stateless person who is ordinarily resident in [country].

EXAMPLE TWO3

(1) Any person who, outside [country], commits an offense referred to in Section 2, is deemed to commit such offense in [country] if—

(a) the offense is committed on board a vessel flying the flag of [country] or an aircraft registered under the laws of [country], at the time the offense is committed;

(b) the offense is committed by a national of [country];

(c) the offense is directed toward or results in the carrying out of an offense referred to in Section 2 in [country] or against a national of [country];

(d) the offense is directed toward or resulted in an offense referred to in Section 2 committed against [country] or a facility of the government of [country] abroad, including diplomatic or consular premises of [country];

(e) the offense is directed toward or resulted in an offense referred to in Section 2 committed in an attempt to compel [country] to do or abstain from doing any act;

(f) the offense is committed by a stateless person who has his or her habitual residence in the territory of [country]; or

(g) the offense is committed on board an aircraft which is operated by the Government of [country].

EXAMPLE THREE4

Courts shall have jurisdiction over the offenses in Section 2 in the following circumstances:

(1) the offense takes place in [country] and—

(a) is committed by a person who is a national of another state or a stateless person;

(b) on board a vessel flying the flag of another state or an aircraft which is registered under the laws of another state at the time the offense is committed;

(c) on board an aircraft which is operated by the government of another state;

(d) is committed by a person who is found outside [country];

(e) was directed toward or resulted in the carrying out of an offense set forth in subsections (a) or (b) of predicate act against—

  • (i) a national of another state; or

  • (ii) another state or a government facility of such state, including its embassy or other diplomatic or consular premises of that state;

(f) was directed toward or resulted in the carrying out of a predicate act committed in an attempt to compel another state or international organization to do or abstain from doing any act; or

(g) was directed toward or resulted in the carrying out of a predicate act--

  • (i) outside [country]; or

  • (ii) within [country], and either the offense or the predicate act was conducted in, or the results thereof affected, interstate or foreign commerce;

(2) the offense takes place outside [country] and—

(a) is committed by a person who is a national of [country] or is a stateless person whose habitual residence is in [country];

(b) is committed by a person who is found in [country]; or

(c) was directed toward or resulted in the carrying out of a predicate act against--

  • (i) any property that is owned, leased, or used by [country] or by any department or agency of [country], including an embassy or other diplomatic or consular premises of [country];

  • (ii) any person or property within [country];

  • (iii) any national of [country] or the property of such national; or

  • (iv) any property of any legal entity organized under the laws of [country], including any of its states, districts, commonwealths, territories, or possessions;

(3) the offense is committed on board a vessel flying the flag of [country] or an aircraft which is registered under the laws of [country] at the time the offense is committed;

(4) the offense is committed on board an aircraft which is operated by [country]; or

(5) the offense was directed toward or resulted in the carrying out of an act referred to in Section 2 committed in an attempt to compel [country] to do or abstain from doing any act.

Section 5. Investigations

(1) [Where any person has reasonable grounds to suspect that funds or financial services are related to or are to be used to facilitate an offense under this Part, it shall be the duty of that person to report the matter to the [Commissioner of Police].]

(2) Where information is received from any source in or outside [country] that a person who has committed or which is alleged to have committed an offense under this part may be present in [country], the [Commissioner of Police] shall take such measures as may be necessary to investigate the facts contained in the information.

(3) Where on investigation it is found that the person referred to in subsection (2) is in [country], the [Commissioner of Police] shall make a report to the [Director of Public Prosecutions] who shall take such measures as are necessary to prosecute or extradite the offender as the circumstances warrant.

(4) Where any person referred to in subsection (1) fails to report as required under that subsection, that person is guilty of an offense and is liable on conviction to a fine of [amount] or imprisonment for a term of [number] years.

Section 6. Rights of an Offender

A person against whom measures referred to in Section 5, subsection (3) are taken is entitled to—

(a) communicate without delay with the nearest appropriate representative of—

  • (i) the state of which the person is a national;

  • (ii) the state which is otherwise entitled to protect that person’s rights; or

  • (iii) where that person is stateless, the state in which that person ordinarily resides;

(b) be visited by a representative of the relevant state referred to in subsection (1); and

(c) be informed of the rights referred to in subsections (a) and (b).

Section 7. Notification of Other States

Where a person is taken into custody as a result of an investigation undertaken under Section 5, the [Director of Public Prosecutions] shall inform the [Attorney General] who shall—

(a) notify, through the Secretary-General of the United Nations, the state which established jurisdiction in respect of an application brought under Section 8 or 9, of the detention of that person and of the circumstances that warranted the detention; and

(b) communicate the final outcome of the proceedings to the Secretary-General for transmission of the information to the other state.

Section 8. Freezing of Funds

(1) Subject to subsection (4), the court may, where it is satisfied on the application by the [Director of Public Prosecutions] that

(a) a person has been charged or is about to be charged with an offense under section 2; or

(b) a request has been made by the appropriate authority of another state in respect of a person

  • (i) who has been charged or is about to be charged with an offense in respect of an act described in Section 3 or 4; or

  • (ii) in respect of whom there is reasonable suspicion that the person has committed an offense refereed to in subparagraph (i);

make an order, in this part referred to as a freezing order, freezing the funds in the possession of or under the control of that person.

(2) An application for a freezing order under subsection (1) may be made ex parte and shall be in writing and be accompanied by an affidavit stating

(a) where the person referred to in subsection (1) has been charged, the offense for which he is charged;

(b) where the person has not been charged, the grounds for

  • (i) believing that the person committed the offense, or

  • (ii) having a reasonable suspicion that the person committed the offense;

(c) a description of the funds in respect of which the freezing order is sought;

(d) the name and address of the person who is believed to be in possession of the funds; and

(e) the ground for believing that the funds are related to or are used to facilitate an offense referred to in subsection (1) and that the funds are subject to the effective control of the person.

(3) Where the court makes an order under subsection (1), the court shall require that

(a) the order be published within such time and manner as the court directs;

(b) the applicant, within 21 days of the making of the order, serve notice of the order together with a copy of the order on any person whom, in the opinion of the court, appears to have an interest in the funds referred to in subsection (2); and

(c) the person referred to in paragraph (b) or any other person who appears to have an interest in the funds, be afforded an opportunity to be heard by the court within such time as the court determines, unless in respect of paragraph (b) the court is of the opinion that giving such notice would result in the disappearance, dissipation, or reduction in the value of the funds.

(4) Where an application for a freezing order made under subsection (1) is made as a result of a request from another state, the court shall not make the order unless it is satisfied that reciprocal arrangements exist between [country] and that other state whereby that other state is empowered to make a similar order in respect of a request for a freezing order from [country].

(5) The court may, in making an order under subsection (1), give directions with regard to

(a) the duration of the freezing order; and

(b) the disposal of the funds for the purpose of

  • (i) determining any dispute relating to the ownership of or other interest in the funds or any part thereof;

  • (ii) its proper administration during the period of the freezing order;

  • (iii) the payment of debts incurred in good faith prior to the making of the order;

  • (iv) the payment of moneys to the person referred to in subsection (1) for reasonable subsistence of that person and family; or

  • (v) the payment of the costs of the person referred to in subparagraph

  • (iv) to defend criminal proceedings against him.

(6) Notwithstanding subsection (5), a freezing order made under this section shall cease to have effect at the end of the period of 6 months after the order was made where the person against whom the order was made has not been charged with an offense under Section 2 within that period.

(7) an order made under subsection (1) may be renewed for a period not exceeding 6 months in each particular case, but in no case shall the entire period exceed 18 months.

(8) A freezing order granted by the court under this section shall not prejudice the rights of any third party acting in good faith.

(9) Where the court makes an order for the administration of frozen funds the person charged with the administration of the funds is not liable for any loss or damage to the funds of for the costs of proceedings taken to establish a claim to the funds or to an interest in the funds unless the court in which the claim is made is of the opinion that the person has been guilty of negligence in respect of the taking of custody of the funds.

Section 9. Forfeiture

(1) Where a person is convicted of an offense under Section 2, the Director of public prosecutions may apply to the court for a forfeiture order against the funds that are she subject of the offense.

(2) The court may upon application by the [Director of Public Prosecutions], forfeit any funds of an offense of terrorism or any funds of that person that are the subject of a freezing order, unless it is proved that the funds did not derive from the commission by that person of an offense under Section 2.

(3) For the purposes of subsection (2) the burden of proof lies on the person who owns, or is in possession or control of the funds.

(4) In determining whether or not any funds are derived from an offense under section 2, the standard of proof required for the purposes or subsection (2) is the same as in criminal proceedings and for he purposes of subsection (3) is the same as in civil proceedings.

(5) In making a forfeiture order the court may give directions

(a) for the purpose of determining any dispute as to the ownership of or other interesting the funds or any part thereof; and

(b) as to the disposal of the funds.

(6) Upon application to the court by a person against whom a forfeiture order has been made under this section the court may order that an amount deemed by the court to be the value of the funds so ordered to be forfeited, be paid by that person to the court an upon satisfactory payment of that sum by that person the funds order to be forfeited shall be returned to him.

Section 10. Sharing of Forfeited Funds

(1) The government of [country] may, pursuant to any agreement with any other state, share with that state on a reciprocal basis, the funds derived from forfeiture pursuant to this Act.

(2) Funds referred to under subsection (1) may be utilized by the government of [country] to compensate victims of the offenses referred to in this Act.

Section 11. Giving Effect to United Nations Security Council Resolutions

Where the Security Council of the United Nations decides, in pursuance of Article 41 of the Charter of the United Nations, on the measures to be employed to give effect to any of its decisions and calls upon the government of [country] to apply those measures, the minister responsible for foreign affairs may, by order published in the gazette, make such provisions as may appear to him or to her necessary or expedient to enable those measures to be effectively applied.

Section 12. Extradition

(1) The offenses described in Section 2 shall be deemed to be extraditable offenses under the Extradition Act, and accordingly, the provisions of that Act shall apply to, and in relation to, extradition in respect to those offenses.

(2) Where there is, on the date on which this Act comes into operation, an extradition arrangement in force between the government of [country] and a state party to the Convention, such arrangement shall, for the purposes of the Extradition Act, be deemed to include provision for extradition in respect of the offenses described in Section 2.

(3) Where there is no extradition arrangement between the government of [country] and a state party to the Convention, the minister [of Foreign Affairs] may, be order published in the gazette, treat the Convention, for the purposes of the Extradition Act, as an extradition arrangement between the government of [country] and such state party to the Convention providing extradition in respect of the offenses set out in Section 2.

(4) Where the government of [country] accedes to a request by a state party to the Convention for the extradition of a person accused of an offense set out in Section 2, the act constituting such offense shall, for the purpose of the Extradition Act, be deemed to have been committed not only in the place where it was committed, but also within the jurisdiction of the requesting state.

(5) Notwithstanding anything in the Extradition Act, an offense set out in Section 2 shall, for the purpose of that Act, be deemed not to be a fiscal offense of an offense of a political character or an offense connected with a political offense or an offense inspired by political motives, for the purpose only of the extradition of a person accused of any such offense as between the government of [country] and a state party to the Convention.

Section 13. Mutual Legal Assistance

Notwithstanding anything in [the Mutual Assistance Act] [this Criminal Code], a request by a state party to the Convention for mutual assistance in respect of an offense set out in Section 2 shall not be refused solely on the ground that:

(a) the rendering of such assistance would result in a violation of the laws relating to banking secrecy; or

(b) such offense is a fiscal offense; or

(c) such offense is a political offense or an offense connected with a political offense or an offense inspired by political motives.

Section 14. Temporary Transfer

(1) Where [country] approves a request from a state party to the Convention seeking the temporary transfer of a person in custody in [country] to the state party to the Convention to testify or assist an investigation or proceeding relating to an offense set out in Section 2, the [Attorney General] may make an application to the court for a transfer order.

(2) The application shall specify:

(a) the name and location of the detained person;

(b) the period of time for which the person is to be transferred;

(c) the country to which the person is to be transferred;

(d) the person or class of person into whose custody the person is to be delivered for purpose of the transfer; and

(e) the purpose of the transfer.

(3) If the judge hearing an application brought pursuant to sub-section 1 is satisfied that the detained person consents to the transfer and the transfer is for a fixed period, the judge shall make a transfer order, including any conditions he or she considers appropriate.

(4) Notwithstanding any provision in the [Immigration Act or other similar legislation], where a request has been made by [country] for a person detained in a state party to the Convention, to be temporarily transferred to [country] to testify or assist an investigation or proceeding relating to an offense set out in Section 2 [of the Criminal Code], the [Minister, Attorney General, or other appropriate authority] may authorize the detained person to enter [country] to remain in a fixed location or locations for a specified period of time.

(5) The [Minister, Attorney General, or other appropriate authority] may vary the terms of an authorization issued under subsection 4.

(6) A person who is in [country] pursuant to a request by [country] shall not be prosecuted or detained or subjected to any other restriction of his or her personal liberty in [country] in respect of any acts or convictions anterior to his or her departure from the territory of the state party to the Convention from which such person was transferred.

Section 15. Alternative Remittance Systems5

(a) Whoever knowingly conducts, controls, manages, supervises, directs, or owns all or part of an unlicensed money transmitting business, shall be fined an amount not exceeding […] or imprisoned not more than […] years, or both.

(b) As used in this section--

(1) the term “unlicensed money transmitting business” means a money transmitting business which—

(A) is operated without a money transmitting license issued by [authority] whether or not the defendant knew that the operation was required to be licensed or that the operation was so punishable; or

(B) otherwise involves the transportation or transmission of funds that are known to the defendant to have been derived from a criminal offense or are intended to be used to be used to promote or support unlawful activity;

(2) the term “money transmitting” includes transferring funds on behalf of the public by any and all means including but not limited to transfers within this country or to locations abroad by wire, check, draft, facsimile, or courier.

Section 16. Refusal of Applications for Registration and the Revocation of the Registration of Charities Linked to Terrorist Groups6

(1) The [Minister of Finance] may sign a certificate refusing or revoking the registration of a charity, based on information received including any security or criminal intelligence reports, where there are reasonable grounds to [believe] [suspect] that an applicant for registration as a registered charity (in this section referred to as “the applicant”) or a registered charity has made, is making or is likely to make available any resources, directly or indirectly, to a terrorist group.

(2) A copy of the signed certificate shall be served on the applicant or the registered charity, personally or by registered letter sent to its last known address, with a copy of the certificate.

(3) The certificate or any matter arising out of it shall not be subject to review or be restrained, prohibited, removed, set aside or otherwise dealt with except in accordance with this section.

(4) Within (30) thirty days of receipt of the copy of the notice under subsection (2), the applicant or the registered charity may make an application to the [High Court] to review the decision of the minister.

(5) Upon the filing of an application under subsection (4), a judge of that court shall–

(a) examine in chambers the information, including any security or criminal or intelligence reports considered by the [Minister of Finance] before signing the certificate and hear any other evidence or information that may be presented by or on behalf of those ministers (whether or not such information is admissible in a court of law), and may, on the request of the minister, hear all or part of that evidence or information in the absence of the applicant or registered charity or any counsel representing the applicant or registered charity, if the judge is of the opinion that disclosure of the information would be prejudicial to national security or endanger the safety of any person,

(b) provide the applicant or the registered charity with a statement summarizing the information available to the judge so as to enable the applicant or registered charity to be reasonably informed of the circumstances giving rise to the certificate, without disclosing any information the disclosure of which would, in the judge’s opinion, be prejudicial to national security or endanger the safety of any person,

(c) provide the applicant or the registered charity with a reasonable opportunity to be heard; and

(d) determine whether the certificate is reasonable on the basis of all the information available to the judge or, if found not reasonable, quash it.

(6) A determination under subsection (5) shall not be subject to appeal or review by any court.

(7) Where the judge determines, under subsection (5) that a certificate is reasonable, or if no application is brought upon the expiry of (30) thirty days from the date of service of the notice, the minister shall cause the certificate to be published in the gazette.

(8) A certificate determined to be reasonable under subsection (5), shall be deemed for all purposes to be sufficient grounds for the refusal of the application for the registration of the charity referred to in the certificate or the revocation of the registration of the charity referred to in the certificate.

(9) Where the judge determines that the certificate is not reasonable, he or she shall order the registration or continued registration of the charity.

Except as otherwise noted, the examples are adapted from the Terrorism Financing Act 2002-6 [Barbados].

Subsection (4) is intended to respond to the provisions of paragraph 1(d) of Resolution 1373 (2001); it is adapted from Article 4 of The Terrorism (Suppression of Financing) Act 2002 [Singapore].

Adapted from the Criminal Code, Section 7 (3.73) [Canada].

Adapted from Title 18, USC 2339C (b) [U. S.].

Adapted from 18 U.S.C. § 1960.

Adapted from the Commonwealth Secretariat’s Model Legislative Provisions on Measures to Combat Terrorism, pp. 32–33.

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