PROCEEDS OF CRIME (CIVIL CONFISCATION) ACT, 2008

Arrangement of Sections

1. Short title.

2. Interpretation.

3. Interim order.

4. Interlocutory order.

5. Disposal order.

6. Ancillary orders and provisions in relation to certain profits or gains, etc.

7. Order in relation to property, the subject of interim order or interlocutory.

8. Receiver.

9. Provisions in relation to evidence and proceedings under this Act.

10. Affidavit specifying property and income of respondent.

11. Registration of interim orders and interlocutory orders.

12. Bankruptcy of respondent etc.

13. Property subject to interim order, interlocutory order or disposal order dealt with by Official Assignee.

14. Winding up of a company in possession or control of property the subject of interim order, interlocutory order or disposal order.

15. Immunity from proceedings.

16. Seizure of certain property.

17. Compensation.

18. Exclusion of limitation periods.

19. Consent orders.

20. Definition.

21. Court procedure.

22. Appeals.

23. Offence of unlawful communication.

24. Rules of Court.

19 of 2008.

SI 67 of 2008.

AN ACT to enable the Supreme Court to make orders in civil proceedings for the preservation and, where appropriate, the disposal of the proceeds of criminal conduct, and to provide for related matters.

[Date of commencement: 8th September 2008]

1. Short title.

This Act may be cited as the Proceeds of Crime (Civil Confiscation) Act, 2008.

2. Interpretation.

In this Act—

“act” includes an omission;

“applicant” means the FIU as established by the Anti-Money Laundering Act, 2006;

“assets agent” means a person appointed as such under the Anti-Money Laundering Act, 2006;

“court” means the Supreme Court presided over by a Judge;

“criminal conduct” shall have the meaning set out in the Anti-Money Laundering Act, 2006;

“benefit from criminal conduct” means any property obtained or received at any time (whether before or after the passing of this Act) by, or as a result of, or in connection with the commission of criminal conduct;

“dealing, in relation to property in the possession or control of a person, includes—

(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt;

(b) removing the property from the Republic; and

(c) in the case of money or other property held for the person by another person, paying or releasing or transferring it to the person or to any other person;

“disposal order*” means an order made under section 4;

“Director” means the person appointed to the F.I.U as such pursuant to the Anti-Money Laundering Act, 2006;

“Deputy Director” means the person appointed to the F.I.U as such pursuant to the Anti-Money Laundering Act, 2006;

F.I.U means the Financial Intelligence and Assets Recovery Unit established under the Anti-Money Laundering Act, 2006;

“interest, in relation to property, includes a right;

“interim order*” means an order under section 2;

“interlocutory order*” means an order under section 3;

[*The cross-references in the definitions of “disposal order, “interim order” and “interlocutory order” appear to be typographical errors, intended to be to section 5, section 3 and section 4 respectively.]

“Minister” means the Minister responsible for internal affairs;

“officer of Customs” includes a public officer who performs the functions of controlling imports or exports;

“property” means money and all other property, real or personal, heritable or move able, including chooses in action and other intangible or incorporeal property and references to property shall be construed as including references to any interest in property, and includes property outside the Republic where by virtue of its domestic jurisdiction generally, in rem or in personam or by virtue of an arrangement with any other country or territory, the Court might be in a position to enforce, and/or secure compliance with any order it might make or otherwise exercise jurisdiction in relation to that property and to comply with an arrangement or a request from another country or territory;

“Republic” means the Republic of Seychelles;

“respondent” means a person in respect of whom an application for an interim order or an interlocutory order has been made or in respect of whom such an order has been made and includes any person who, but for this Act, would become entitled, on the death of the first-mentioned person, to any property to which such an order relates (being an order that is in force and is in respect of that person);

“specified property” means property the subject of an application to Court or an order made by Court under this Act.

3. Interim order.

(1) Where on an ex-parte application to Court in that behalf by the applicant, it appears to the Court, on evidence, including evidence admissible by virtue of section 9, tendered by the applicant, that—

(a) a person is in possession or control of—

(i) specified property and that the property constitutes directly or indirectly, benefit from criminal conduct; or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct; and

(b) the value of the property or the total value of the property referred to in sub-paragraphs (i) and (ii) of paragraph (a) is not less than R50,000,

the Court may make an interim order prohibiting the person specified in the order or any person having notice of the making of the order from disposing of, or otherwise dealing with the whole or any part of the property or diminishing its value during the period of 30 days from the date of the making of the order.

(2) An interim order—

(a) may contain such conditions and restrictions as the Court considers necessary or expedient; and

(b) shall provide for notice of it to be given to the respondent and any other person who appears to be affected by it, unless the Court is satisfied that it is not reasonably possible to ascertain his whereabouts.

(3) Where an interim order is in force, the Court, on application to it in that behalf by the respondent or any other person claiming to have an interest in any of the property concerned may, if it is shown to the satisfaction of the Court, that—

(a) the property concerned or a part of it is not property to which sub-paragraph (i) or (ii) of subsection (1)(a) applies; or

(b) the total value of the property to which sub-paragraphs (i) and (ii) of subsection (1)(a) apply is less than R50,000, the Court shall,

discharge or, as may be appropriate, vary the order.

(4) The Court shall, on application to it, in that behalf at any time by the applicant, discharge an interim order.

(5) Subject to subsections (3) and (4), an interim order shall continue in force until the expiration of the period of 30 days from the date of its making and shall then lapse, unless an application for the making of an interlocutory order in respect of any of the property concerned is brought during that period and if such an application is brought, the interim order shall lapse upon—

(a) the determination of the application for the interlocutory order;

(b) the expiration of the ordinary time for bringing an appeal from the determination of the interlocutory order; or

(c) if such an appeal is brought, the determination or abandonment of it or of any further appeal or the expiration of the ordinary time for bringing any further appeal,

whichever is the latest.

(6) Notice of an application under this section shall be given—

(a) in case the application is made under subsection (3) by the respondent or other person making the application to the applicant;

(b) in case the application is made under subsection (4) by the applicant to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain his whereabouts; and

(c) in case of an application made under either subsection (3) or (4), to any other person in relation to whom the Court directs that notice of the application be given to him.

(7) An application under subsection (1) shall—

(a) specify the name, address and national identity number (if known) of the respondent;

(b) set out the particulars of the property in respect of which the interim order is sought;

(c) specify the grounds as to why the interim order is sought; and

(d) be supported by an affidavit verifying the matters set out in the application other than in cases of urgency when the application may be grounded on oral evidence but an affidavit containing the evidence upon which the interim order shall have been granted shall be filed without delay.

(8) Oral evidence may be adduced during an application made under this section if the Court shall so require or permit.

4. Interlocutory order.

(1) Where, on an inter partes application to Court, in that behalf by the applicant, it appears to the Court, on evidence, including evidence admissible by virtue of section 9, tendered by the applicant, that—

(a) a person is in possession or control of—

(i) specified property and that the property constitutes, directly or indirectly, benefit from criminal conduct; or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct; and

(b) the value of the property or the total value of the property referred to in sub-paragraphs (i) and (ii) of paragraph (a) is not less than R50,000,

the Court shall make an interlocutory order prohibiting the person specified in the order or any other person having notice of the making of the order from disposing of or otherwise dealing with the whole or, any part of the property, or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person, that—

(i) the particular property does not constitute, directly or indirectly, benefit from criminal conduct and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct; or

(ii) the total value of all the property to which the order would relate is less than R50,000:

Provided that the Court shall not make the order if it is satisfied that there would be a risk of injustice to any person (the onus of establishing which shall be on that person), and the Court shall not decline to make the order in whole or in part to the extent that there appears to be knowledge or negligence of the person seeking to establish injustice, as to whether the property was as described in subsection (1)(a) when becoming involved with the property.

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