|
OFFICE OF THE ATTORNEY GENERAL AND |
MINISTRY OF JUSTICE |
S.I. No. 61 of 2002 |
CRIMINAL JUSTICE |
(INTERNATIONAL CO-OPERATION) ACT, 2000 |
(No. 42 of 2000) |
CRIMINAL JUSTICE (INTERNATIONAL |
CO-OPERATION) (ENFORCEMENT OF |
OVERSEAS FORFEITURE ORDERS) ORDER,
2002 |
The Attorney General in exercise
of the powers conferred by section 9 of the Criminal Justice (International
Co-operation) Act, 2000 makes the following order? |
1. This Order may be cited as
the Criminal Justice (International Co-operation) (Enforcement of Overseas
Forfeiture Orders) Order, 2002. | Citation. |
| Interpretation. |
“appropriate authority of a designated country”
means - |
(a) the authority specified opposite
that country in the Second Schedule; or | Second Schedule. |
(b) where no authority is so
specified, the authority approved for the purposes of this Order under
paragraph 13; |
“a court of a designated country” includes a court
of any state of a designated country; |
“designated country” means a country designated
under paragraph 4; |
“the Act” means the Criminal Justice
(International Co-operation) Act, 2000; | No. 42 of 2000. |
“police officer” includes a customs officer
employed in the Customs Department; |
“property” includes money and all other property
real or personal, heritable or moveable, including things in action and other
intangible or incorporeal property. |
(2) This Order applies to property
whether it is situated in The Bahamas or elsewhere. |
(3) Property is held by any person
if he holds any interest in it. |
(4) Proceedings are instituted in
a designated country when - |
(a) under the law of the designated
country concerned one of the steps specified in relation to that country in the
right - hand column of the First Schedule has been taken there in respect of an
alleged drug trafficking offence or an offence under the Proceeds of Crime Act,
2000; or | First Schedule. No. 44 of 2000. |
(b) an application has been made to a
court in a designated country for an external forfeiture order; |
and where the application of this subparagraph
would result in there being more than one time for the institution of
proceedings, they shall be taken to have been instituted at the earliest of
those times. |
(5) Proceedings are concluded - |
(a) when (disregarding any power of a
court to grant leave to appeal out of time) there is no further possibility of
a forfeiture order being made in the proceedings; |
(b) on the satisfaction of a
forfeiture order made in the proceedings (whether by the recovery of all
property liable to be recovered, or otherwise). |
(6) An order is subject to appeal
until (disregarding any power of a court to grant leave to appeal out of time)
there is no further possibility of an appeal on which the order could be varied
or set aside. |
3.(1) An order made by a court in a
designated country for the forfeiture and destruction or forfeiture and other
disposal, of anything in respect of which a drug trafficking offence or an
offence relating to the proceeds of drug trafficking has been committed or any
offence if committed in the designated country would constitute an offence
under the Proceeds of Crime Act, 2000 or anything which was used in connection
with the commission of such an offence is referred to in this Order as an
“external forfeiture order”. | External forfeiture orders. |
(2) In subparagraph (1), the
reference to an order includes any order, decree, direction or judgment, or any
part thereof, however described. |
(3) A person against whom an
external forfeiture order has been made, or a person against whom proceedings
which may result in an external forfeiture order being made have been, or are
to be, instituted in a court in a designated country, is referred to as “the
defendant”. |
4. Each of the countries and
territories specified in the Second Schedule is hereby designated for the
purposes of section 9 of the Act. | Designation of countries and
territories. Second Schedule. |
5.(1) The Supreme Court may in
accordance with this section by an order (referred to in this Order as a
“restraint order”) prohibit any person, subject to such conditions and
exceptions as may be specified in the Order, from dealing with any property
liable to forfeiture, that is to say, any property in respect of which an
external forfeiture order has been made or in respect of which such an order
could be made in the proceedings referred to in subparagraph (2) and (3). | Restraint Orders. |
(2) A restraint order may be made
where - |
(a) proceedings have been instituted
against the defendant in a designated country; |
(b) the proceedings have not been
concluded; and |
(c) either an external forfeiture
order has been made in the proceedings or it appears to the Supreme Court that
there are reasonable grounds for believing that such an order may be made in
them. |
(3) A restraint order may also be
made where - |
(a) it appears to the Supreme Court
that proceedings are to be instituted against the defendant in a designated
country; and |
(b) it appears to the Court that there
are reasonable grounds for believing that an external forfeiture order may be
made in them. |
(4) Where the Court has made an
order under subparagraph (1) by virtue of subparagraph (3), the Court shall
discharge the order if the proposed proceedings are instituted within such time
as the Court considers reasonable. |
|
(a) may be made only on an
application by or on behalf of the government of a designated country or, in a
case where an external forfeiture order has been registered under paragraph 10,
by the Attorney General; |
(b) may be made on an ex parte
application to a Judge in Chambers; and |
(c) notwithstanding anything in rules
of court, may provide for service on, or the provision of notice to, persons
affected by the order in such manner as the Supreme Court may direct. |
|
(a) may be discharged or varied in
relation to any property; and |
(b) shall be discharged when the
proceedings in relation to which the order was made are concluded. |
(7) An application for the
discharge or variation of a restraint order may be made by any person affected
by it. |
(8) Where the Supreme Court has
made a restraint order, the Court may at any time appoint a receiver - |
(a) to take possession of any
property specified in the restraint order; and |
(b) in accordance with the Court's
directions, to manage or otherwise deal with any property in respect of which
he is appointed, |
subject to such exceptions and conditions as
may be specified by the Court, and may require any person having possession of
property in respect of which a receiver is appointed under this section to give
possession of it to the receiver. |
(9) For the purpose of this
section, dealing with property held by any person includes (without prejudice
to the generality of the expression) removing the property from The Bahamas. |
(10) Where a restraint order has
been made, a police officer may for the purpose of preventing any property
specified in the restraint order being removed from The Bahamas, seize the
property. |
(11) Property seized under
subparagraph (10) shall be dealt with in accordance with the directions of the
Court which made the order. |
6. An application under
paragraph 5(5) shall be supported by an affidavit which shall- | Application for restraint orders. |
(a) state, where applicable, the
grounds for believing that an external forfeiture order may be made in the
proceedings instituted or to be instituted in the designated country
concerned; |
(b) to the best of the deponent's
ability, give particulars of the property in respect of which the order is sought
and specify the person or persons holding such property; |
(c) in a case to which paragraph 5(3)
applies, indicate when it is intended that proceedings should be instituted in
the designated country concerned; |
and the affidavit may, unless the Court otherwise
directs, contain statements of information or belief with the sources and
grounds thereof. |
7.(1) Where an external forfeiture
order has been registered in a Supreme Court under paragraph 10, the Supreme
Court may, on the application of the Attorney-General, order the forfeiture of
the property specified in the external forfeiture order. | Disposal of forfeited property. |
(2) The proceeds of any property
forfeited under subparagraph (1) shall be paid into the Confiscated Assets
Fund. |
(3) The court shall not in respect
of any property exercise the powers conferred by subparagraphs (1) and (2)
unless a reasonable opportunity has been given for persons holding any interest
in the property to make representations to the court. |
8.(1) This paragraph applies to the
power conferred on the Supreme Court by paragraph 5 or on a receiver appointed
under paragraph 5. | Exercise of powers by Supreme Court
or receiver. |
(2) The powers shall be exercised
with a view to recovering property which is liable to be recovered under an
external forfeiture order registered in the Supreme Court under paragraph 10
or, as the case may be, with a view to recovering property which may become
liable to be recovered under any external forfeiture order which may be made in
the defendant's case. |
9.(1) Where a receiver appointed
under paragraph 5 takes action - | Receivers supplementary provisions. |
(a) in relation to property which is
not liable to recovery under an external forfeiture order, being action which
he would be entitled to take if it were such property; |
(b) believing, and having reasonable
grounds for believing, that he is entitled to take that action in relation to
that property, |
he shall not be liable to any person in respect
of any loss or damage resulting from his action except in so far as the loss or
damage is caused by his negligence. |
(2) Any amount due in respect of
the remuneration and expenses of a receiver so appointed shall be paid by the
person on whose application the receiver was appointed. |
10.(1) On an application made by or on
behalf of the government of a designated country, a magistrate's court may
register an external forfeiture order made there if - | Registration of external forfeiture
orders. |
(a) it is satisfied that at the time
of registration the order is in force and not subject to appeal; |
(b) it is satisfied, where the person
against whom the order is made did not appear in the proceedings, that he
received notice of the proceedings in sufficient time to enable him to defend
them; and |
(c) it is of the opinion that
enforcing the order in The Bahamas would not be contrary to the interests of
justice. |
(2) In subsection (1) “appeal”
includes - |
(a) any proceedings by way of
discharging or setting aside a judgment; and |
(b) an application for a new trial or
a stay of execution. |
(3) The Supreme Court shall cancel
the registration of an external forfeiture order if it appears to the court
that the order has been satisfied by the forfeiture of the property liable to
be recovered under the external forfeiture order or by any other means. |
11.(1) For the purposes of this Order - | Proof of orders and judgement of
court in a designated country. |
(a) any order made or judgment given
by a court in a designated country purporting to bear the seal of that court,
or to be signed by any person in his capacity as a judge, magistrate or officer
of the court, shall be deemed without further proof to have been duly sealed
or, as the case may be, to have been signed by that person; and |
(b) a document, duly authenticated,
which purports to be a copy of any order made or judgment given by a court in a
designated country shall be deemed without further proof to be a true copy. |
(2) A document purporting to be a
copy of any order made or judgment given by a court in a designated country is
duly authenticated for the purposes of sub-paragraph (1)(b) if it purports to
be certified by any person in his capacity as a judge, magistrate or officer of
the court in question or by or on behalf of the appropriate authority of the
designated country. |
12.(1) For the purposes of this Order,
a certificate purporting to be issued by or on behalf of the appropriate
authority of a designated country stating - | Evidence in relation to proceedings
and orders in in a designated country. |
(a) that proceedings have been
instituted and have not been concluded, or that proceedings are to be
instituted, there; |
(b) that an external forfeiture order
is in force and is not subject to appeal; |
(c) that property recoverable in the
designated country under an external forfeiture order remains un-recovered
there; |
(d) that any person has been notified
of any proceedings in accordance with the law of the designated country;
or |
(e) that an order (however described)
made by a court of the designated country for the forfeiture and destruction or
the forfeiture and other disposal of anything in respect of which a drug
trafficking offence or an offence under the Proceeds of Crime Act, 2000, has
been committed or which was used in connection with the commission of such an
offence, shall, in any proceedings in the Supreme Court or, as the case may be,
a magistrate's court, be admissible as evidence of the facts so stated. | of 2000. |
(2) In any such proceedings a
statement contained in a document, duly authenticated, which purports to have
been received in evidence or to be a copy of a document so received, or to set
out or summarise evidence given in proceedings in a court in a designated
country, shall be admissible as evidence of any fact stated therein. |
(3) A document is duly
authenticated for the purposes of sub-paragraph (2) if it purports to be
certified by any person in his capacity as judge, magistrate or officer of the
court in the designated country, or by or on behalf of the appropriate
authority of the designated country, to have been received in evidence or to be
a copy of a document so received, or, as the case may be, to be the original
document containing or summarizing the evidence or a true copy of that
document. |
(4) Nothing in this section shall
prejudice the admission of any evidence, whether contained in any document or
otherwise, which is admissible apart from this paragraph. |
13. Where in relation to any
designated country no authority is specified in the Second Schedule, a
certificate made by the Governor General to the effect that the authority
specified therein is the appropriate authority for the purposes of this Order
shall be sufficient evidence of that fact. | Certificate of appropriate
authority. Second Schedule. |
14. A request for assistance sent
to the Attorney-General by the appropriate authority of a designated country
shall, unless the contrary is shown, be deemed to constitute the authority of
the government of that country for the Attorney-General to act on its behalf in
any proceedings in the Supreme Court under paragraph 10 or any other provision
of this Order. | Representation of government of a
designated country. |
(Paragraph 2(4)) |
FIRST SCHEDULE |
INSTITUTION OF PROCEEDINGS |
|
Designated Country
|
Point at which Proceedings are Instituted
|
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Anguilla
|
(a)
|
when a summons or warrant is issued in
respect of an offence ;
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(b)
|
when a person is charged with an offence
after being taken into custody without a warrant ;
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(c)
|
when a bill of indictment is preferred.
|
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Argentina
|
when a judge has ordered that a person be
detained for the purpose of testifying in connection with the commission of
an offence.
|
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Australia
|
(a)
|
when an information has been laid before a
justice of the peace ;
|
|
|
(b)
|
a person is charged with an offence after
having been taken into custody without a warrant ;
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|
|
(c)
|
when a bill of indictment is preferred.
|
|
Barbados
|
(a)
|
when an information has been laid before a
magistrate ;
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|
|
(b)
|
when a person is charged with an
offence ;
|
|
|
(c)
|
when a bill of indictment is preferred.
|
|
Bermuda
|
when an information has been laid charging a
person with an offence
|
|
British Virgin Islands
|
(a)
|
when a summons or warrant is issued in
respect of an offence ;
|
|
|
(b)
|
when a person is charged with an offence
after being taken into custody without a warrant ;
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|
|
(c)
|
when an indictment is preferred.
|
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The Cayman Islands
|
(a)
|
when a charge has been signed under
subsection (3) or (4) of section 13 of the Criminal Procedure Code in respect
of the offences ;
|
|
|
(b)
|
when a person is charged with the offence
after being arrested without a warrant under subsection (5) of that section.
|
|
Ecuador
|
when a writ is issued by a judge initiating
criminal proceedings.
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|
Germany
|
when a person is notified that he is accused
of an offence and will be brought before a court.
|
|
Gibraltar
|
when a person is charged with an offence,
whether by the laying of an information or otherwise.
|
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Grenada
|
(a)
|
when an information has been laid before a
justice of the peace ;
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(b)
|
when a person is charged with an
offence ;
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(c)
|
when a bill of indictment is preferred.
|
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Guernsey
|
when a person is charged with an offence.
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Guyana
|
when a charge has been laid against a person
for an offence.
|
|
Special Administrative
|
(a)
|
when a magistrate issues a warrant or
summons ;
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Region of Hong Kong
|
(b)
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when a person is charged with an
offence ;
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(c)
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when an indictment is preferred.
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India
|
(a)
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when information relating to the commission
of any crime is received by any law enforcement agency empowered to
investigate such crime under the law for the time being in force and laid
before a court of law ;
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(b)
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when any allegation is made orally or in
writing to a court of law that a person has committed an offence ;
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(c)
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when a person is charged with an
offence ;
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(d)
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when any investigation or inquiry into the
commission of any offence is directed by a court of law.
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Isle of Man
|
(a)
|
where a justice of the peace issues a summons
under section 4 of the Summary Jurisdiction Act 1989, when the complaint in
relation to the offence is made to him ;
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(b)
|
where a justice of the peace issues a warrant
for the arrest of any person under that section, when the complaint in
relation to the offence is made to him ;
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(c)
|
where a person is charged with the offence
after being taken into custody without a warrant, when he is taken into
custody ;
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(d)
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where an information is preferred by the
Attorney General in a case where there have been no committal proceedings,
when the information is lodged in the General Registry in accordance with
section 4(1) of the Criminal Code Amendment Act 1917.
|
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Italy
|
(a)
|
when a person is notified, in accordance with
Article 369 of the Italian Code of Criminal Procedure, that a prosecution
against him is in progress ;
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(b)
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when a proposal for the application of a
preventative measure (“misura di prevenzione”) is laid before a court.
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Jersey
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(a)
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when the Bailiff issues a warrant in respect
of an offence for the arrest of a person which is out of the Island ;
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(b)
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when a person is arrested and charged with an
offence ;
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(c)
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when a summons in respect of an offence is
served on a person at the instance of the Attorney General ;
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(d)
|
when a summons in respect of the offence is
served on a person in accordance with the provisions of Article 8 of the
Police Court (Miscellaneous Provisions) (Jersey) Law, 1949.
|
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Malaysia
|
when a person is charged with an offence.
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Montserrat
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(a)
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when a judge issues a summons or warrant in
respect of an offence ;
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(b)
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when a person is charged with an offence
after being taken into custody without a warrant.
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Netherlands
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(a)
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when a pre-trial financial investigation has
been initiated ;
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(b)
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when the provisional measure has been ordered
by an investigating magistrate ;
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(c)
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when a public prosecutor has requested a
pre-trial criminal investigation by an investigating magistrate to be
instituted ;
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(d)
|
when a public prosecutor has laid an
indictment.
|
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Panama
|
when a person has been charged with an
offence.
|
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Paraguay
|
when a judge has ordered the restraint of
property and a preventive detention order has been made.
|
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Romania
|
(a)
|
when the start of a penal pursuit is
ordered ;
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(b)
|
when penal proceedings start in respect of an
offender.
|
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Saudi Arabia
|
when an information has been laid before a
judicial authority.
|
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South Africa
|
(a)
|
when a summons is issued in respect of an
offence ;
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(b)
|
when a person is charged with an
offence ;
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(c)
|
when a bill of indictment is preferred.
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Spain
|
when by virtue of a judicial resolution it is
decided to proceed against a person for an offence.
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Sweden
|
when a public prosecutor has established that
there are reasonable grounds to suspect that a person has committed an
offence and accordingly is obliged under the Code of Judicial Procedure to
notify the person of the suspicion.
|
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Switzerland
|
when proceedings for an offence are brought
before an examining magistrate.
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Thailand
|
when a court or the Asset Examination
Committee issues a restraint order.
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Turks & Caicos Islands
|
(a)
|
when a summons or warrant is issued in
respect of an offence ;
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|
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(b)
|
when a person is charged with an offence
after being taken into custody without a warrant.
|
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Ukraine
|
when a criminal case is brought.
|
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United Kingdom
|
when a summons or warrant is issued in
respect of an offence, or a person is charged after being taken into custody
without a warrant, or a bill of indictment is preferred.
|
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United Mexican States
|
when criminal proceedings are instituted by a
judicial authority.
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United States of America
|
when an indictment, information or complaint
has been filed against a person in respect of an offence.
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Uruguay
|
when criminal proceedings are instituted by a
judicial authority.
|
|
(Paragraph 4) |
SECOND SCHEDULE |
|
Designated Country
|
Appropriate Authority
|
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Afghanistan
|
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Algeria
|
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Anguilla
|
the Attorney General of Anguilla
|
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Antigua and Barbuda
|
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Argentina
|
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Armenia
|
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Australia
|
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Austria
|
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Azerbaijan
|
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Bahrain
|
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Bangledesh
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Barbados
|
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Belarus
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Belgium
|
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Belize
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Benin
|
|
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Bermuda
|
the Attorney General of Bermuda
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Bhutan
|
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Bolivia
|
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Boznia and Herzegovina
|
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Brazil
|
|
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British Virgin Islands
|
the Attorney General of the British Virgin
Islands
|
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Brunei Darussalam
|
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Bulgaria
|
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Burkina Faso
|
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Burundi
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Cameroon
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Canada
|
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Cape Verde
|
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The Cayman Islands
|
the Attorney General of the Cayman Islands
|
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Chad
|
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Chile
|
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Republic of China
|
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Colombia
|
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Costa Rica
|
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Croatia
|
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Cuba
|
|
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Cyprus
|
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The Czech Republic
|
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Denmark
|
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Dominica
|
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Dominican Republic
|
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Ecuador
|
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Egypt
|
|
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El Salvador
|
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Ethiopia
|
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Fiji
|
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Finland
|
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France
|
|
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Gambia
|
|
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Germany
|
|
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Ghana
|
|
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Gibraltar
|
the Attorney-General of Gibraltar
|
|
Greece
|
|
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Grenada
|
|
|
Guatemala
|
|
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Guinea-Bissau
|
|
|
Guernsey
|
Her Majesty's Attorney General for the
Bailiwick of Guernsey
|
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Guyana
|
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Haiti
|
|
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Honduras
|
|
|
Special Administrative Region of Hong Kong
|
the Attorney General of Hong Kong
|
|
Isle of Man
|
Her Majesty's Attorney General for the Isle
of Man
|
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Italy
|
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Ivory Coast
|
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Jamaica
|
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Japan
|
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Jordan
|
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Kenya
|
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Kyrgyzstan
|
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Latvia
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Lesotho
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Luxembourg
|
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Macedonia
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Madagascar
|
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Malawi
|
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Malaysia
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Mali
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Malta
|
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Mauritania
|
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Moldova
|
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Monaco
|
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Montserrat
|
the Attorney General of Montserrat
|
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Myanmar
|
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Morocco
|
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Nepal
|
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Netherlands
|
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Nicaragua
|
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Niger
|
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Nigeria
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Norway
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Oman
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Pakistan
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Panama
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Paraguay
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Peru
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Poland
|
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Portugal
|
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Qatar
|
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Romania
|
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The Russian Federation
|
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St. Christopher and Nevis
|
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St. Lucia
|
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St. Vincent and the Grenadines
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Sao Tome and Principe
|
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Saudi Arabia
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Senegal
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Seychelles
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Sierra Leone
|
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Slovakia
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Slovenia
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South Africa
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Spain
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Sri Lanka
|
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Sudan
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Suriname
|
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Swaziland
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Sweden
|
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Switzerland
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Syrian Arab Republic
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Syria
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Tajikistan
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Thailand
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the Attorney General or a person designated
by him
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Togo
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Tonga
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Trinidad & Tobago
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Tunisia
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Uganda
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Ukraine
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United Arab Emirates
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United Kingdom of Great Britain And Northern
Ireland
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United Mexican States
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United Republic of Tanzania
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United States of America
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Uruguay
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Uzbekistan
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Venezuela
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Yemen
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The Federal Republic of Yugoslavia, Serbia
and Montenegro
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Zambia
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Zimbabwe
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Made the 24th day of April, 2002. |
Signed |
CARL W. BETHEL |
Attorney General & Minister of Justice |