adb model law

7/27/2019 ADB Model Law

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This is a Model law incorporating the 40 plus 8 Recommendations of the FATFas at June 2003. The model is drawn on the basis that it contains the requirementsto criminalize money laundering and terrorist financing, provides for transactionand suspicious reporting, for forfeiture and freezing of assets and for formalmutual assistance.

Some terms have been defined in bold and placed in brackets to assist withtranslation. These definitions do not form part of the Law and are to assist in theredrafting process and for translation purposes.

LAWS OF (INSERT COUNTRY NAME)

Anti-Money Laundering Law

ARRANGEMENT OF ARTICLESPART IPRELIMINARY

1. Short title and commencement2. Application3. Interpretation

PART IIMONEY LAUNDERING OFFENCES

4. Offence of money laundering5. Protection of informers and information

6. Restriction on revealing disclosure under Article 5PART IIIFINANCIAL INTELLIGENCE

7. Functions of the Anti-Money Laundering Intelligence Unit8. Provisions relating to the Anti-Money Laundering Intelligence Unit9. Authorisation to release information10. Communication to a foreign State11. Prohibited disclosure12. Permitted disclosure

PART IVREPORTING OBLIGATIONS

13. Recordkeeping by reporting institutions14. Report by reporting institutions

This Model Law has been prepared by the Asian Development Bank


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15. Centralization of information16. Identification of account holder 17. Retention of records18. Opening account in false name

19. Compliance program20. Secrecy obligations overridden21. Obligations of supervisory or licensing authority22. Powers to enforce compliance23. Currency reporting at border 24. Protection of persons reporting25. Examination of a reporting institution26. Examination of person other than a reporting institution27. Appearance before examiner 28. Destruction of examination records

PART V

INVESTIGATION29. Investigation by Anti-Money Laundering Intelligence Unit and enforcement

agencies30. Appointment of investigating officer 31. Powers of an investigating officer 32. Power to examine persons33. Obstruction to exercise of powers by an investigating officer 34. Tippingoff

35. Referral of Matters after investigation and analysis. PART VI

FREEZING, SEIZURE AND FORFEITURE

36. Freezing of property37. Forfeiture of property38. Property tracking and Monitoring39. Offences40. Limitations on freezing and forfeiture of property

41. Appeals

Part VIIMUTUAL ASSISTANCE IN RELATION TO MONEY LAUNDERING

42. Co-operation with a foreign State43 Power to obtain search warrants44. Property tracking and monitoring Orders45. Freezing and forfeiture of property46. Request accompanied by an evidence order 47. Limitation on compliance with request48. Requests to other States

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49. Issuing Evidence Order against foreign resident50. Evidence pursuant to a request51. Form of request52. Contents of request53. Request for forfeiture

54. Request not invalidated55. Offences56. Asset Sharing57. Advocates and lawyers to disclose information

58.

Part VIIIAdditional Powers of the Public Prosecutor

Investigation powers in relation to a financial institution

59. Public prosecutors powers to obtain information60. Prohibition of dealing with property outside (insert country name)

PART IX

MISCELLANEOUS

61. Validity of freeze or forfeiture62. Absconded person63.. Forfeiture order where person has absconded64 Effect of death on proceedings65. Service of documents on absconder 66. Agent provocateur

67. Standard of proof 68. Admissibility of documentary evidence69. Admissibility of statements by accused persons70. Admissibility of statements and documents of persons who are dead or

cannot be traced, etc.

71. Admissibility of translation of documents72. Evidence of corresponding law or foreign law73. Proof of conviction and acquittal74. Indemnity75. Service of notices76. Preservation of secrecy77. Jurisdiction78. Power to issue guidelines, etc.79. Regulations80. Amendment of Schedules

81. General offence82. Offence committed by any person acting in an official capacity83. Offence by an individual84. Falsification, concealment and destruction of document, etc.85. Joinder of offences86. Prosecution

FirstSchedule

Article 3, definition of serious offence .

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SecondSchedule

Article 14, Details to be included in Suspicious Transaction Reports.

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PART I

Article I

Objective [the purpose of the Law]

The objective of this Law is to create the offense of money laundering including thefinancing of terrorism, to specify measures and activities designed to prevent moneylaundering and the financing of terrorism, along with the establishment an official bodyresponsible for the monitoring and implementation of necessary measures and other activities to prevent money laundering and the financing of terrorism activities and to

provide for international cooperation and for the forfeiture of illicitly [illicit = illegal] obtained benefits [benefits = any property, money or asset or thing, an advantage] as described in this Law.

ARTICLE 2Application

(1) This Law shall apply to any serious offence, foreign serious offence or unlawfulactivity whether committed before or after the commencement date.

(2) This Law shall apply to any property, whether it is situated in or outside (insert country name) .

(3) Nothing in this Law shall impose any duty or confer [confer = give] any power onany court in or in connection with any proceedings under this Law against a person for aserious offence in respect of which he has been convicted by a court before thecommencement date.

Article 3.Interpretation

(1) To serve the objectives of this Law, unless the context otherwise requires

acts of terrorism means any act whatsoever leading towards or preliminary to anyterrorist act or attempted or contemplated terrorist act carried out or to be carried outwithin or outside (insert country name); [a contemplated terrorist act is an act that isbeing planned]

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the Anti-Money Laundering Intelligence Unit means the entity appointed under Article7(1);

associate, in relation to a person, means

(a) any person who is a nominee or an officer of that person;

(b) any person who manages the affairs of that person;

(c) any partnership of which such person, or any nominee of his, is a partner or a person in charge or in control of its business or affairs;

(d) any juridical entity, corporation of which such person, or any nominee of his, is a director or is in charge or in control of its business or affairs, or inwhich such person, alone or together with any nominee of his, has or have a controlling interest, or shares to the total value of not less thanthirty percent of the total issued capital of that juridical entity or corporation; or

(e) the trustee of any trust, where [a trust is like a company, but not registered. The controlling person is called a "trustee" and theowners are called "beneficiaries". It is like a foundation in civil law.]

(i) the trust has been created by that person; or

(ii) the total value of the assets contributed by that person to the trustat any time, whether before or after the creation of the trust,amounts, at any time, to not less than twenty per centum of thetotal value of the assets of the trust;

the Bank of (insert country name) means the Bank of (insert country name) establishedby the Bank of (insert country name) Law [This is a reference to the law establishingthe Central or Reserve Bank} ;

client includes a customer;

competent authority means the Minister of Justice;

compliance officer means the compliance officers designated under Article 19(5);

constituent document in relation to an institution, means the statute, charter,memorandum of association and articles of association, rules and bylaws, partnershipagreement, joint venture agreement, registration document, verification document or other instrument, under or by which the institution or juridical entity is established and itsgoverning and administrative structure and the scope of its functions and business areset out, whether contained in one or more documents; [This is a founding document that establishes the relationship between the parties. It is the "constitution" governing their relationship] ,

controller, in relation to an institution, means

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(a) the chief executive officer of the institution, juridical entity or of a juridical

entity or body corporate of which the institution is a subsidiary;

(b) a person, either alone or with any associate

(i) has interest in one third or more of its voting shares;

(ii) has the power to appoint, or cause to be appointed, a majority of its directors; or

(iii) has the power to make a decision, or cause a decision to bemade, in respect of its business or administration;

corresponding authority, in relation to a foreign State, means the authority of thatforeign State responsible for receiving information that corresponds to any thing requiredto be disclosed to the Anti-Money Laundering Intelligence Unit under Article14;[means a body like the Anti-Money Laundering Intelligence Unit]

court means the Supreme Court of (insert country name); [This is intended to be asuperior court, but one from which appeals can be brought]

criminal proceedings means a trial of a person for a serious offence or foreign seriousoffence, as the case may be, and includes any proceedings to determine whether aparticular person should be tried for the offence;

dealing, in relation to any property, includes

(a) receiving or acquiring the property;

(b) concealing or disguising the property (whether by concealing, or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise);

(c) disposing of or converting the property; [ converting = selling it for money or other things of value]

(d) bringing the property into or removing the property from (insert country

name) ;

(e) using the property to borrow money, or as security (whether by way of charge, mortgage or pledge or otherwise); or

(f) where a debt is owed to the person holding the property, making apayment to any person in reduction of the amount of the debt.

enforcement agency includes a body or agency that is for the time being responsible in(insert country name) for the enforcement of laws relating to the prevention, detectionand investigation of any serious offence;

financial institution means

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any person or entity who conducts as a business one or more of the followingactivities or operations for or on behalf of a customer or is an auditor of any suchbusiness and includes all such businesses whether they may be solvent,insovent or have filed for bankruptcy:

(a) banking as defined in the [Banking Act or other comparable law governing banks in the country] including acceptance of deposits andother repayable funds from the public;

(b) lending, including consumer credit, mortgage credit, factoring (with or without recourse) and financing of commercial transactions;

(c) financial leasing;

(d) money transmission services;

(e) issuing and managing means of payment (such as credit cards,travellers cheques and bankers drafts);

(f) issuing financial guarantees and commitments;

(g) trading for its own account or for account of customers in money marketinstruments (such as cheques, bills, certificates of deposit), foreignexchange, financial futures and options, exchange and interest rate andindex instruments, commodity futures trading and transferable securities;

(h) participating in securities issues and the provision of financial servicesrelated to such issues;

(i) money-broking;

(j) individual and collective portfolio management;

(k) investing, administering or managing funds or money on behalf of other persons

(l) Safekeeping and administration of cash or liquid securities on behalf of other persons ;

(m) safe custody services;

(n) insurance, insurance intermediation, a securities dealing or a futuresbroking; [ intermediation = acting as a broker]

(o) trustee administration or investment management of a superannuation or pension scheme;

(p) casinos, gambling house or lottery, including a person who carries onsuch a business through the internet, when their customers engage infinancial transactions equal to or above the prescribed threshold;

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(q) Real estate agents, when they are involved in transactions for their clientrelating to the buying and selling of real estate;

(r) Dealers in precious metals, dealers in precious stones and dealers innantiques, when they engage in any cash transaction with a customer equal to or above the prescribed threshold;

(s) Lawyers, notaries, other independent legal professionals and accountantswhen they prepare for or carry out transactions for their client relating tothe following activities:

(i) buying and selling of real estate;(ii) managing of client money, securities or other assets;(iii) management of bank, savings or securities accounts;(iv) organization of contributions for the creation, operation or

management of companies;(v) creation, operation or management of legal persons or

arrangements, and buying and selling of business entities;

(t) a trust or company service provider not otherwise covered by thisdefinition, which as a business, provide any of the following services tothird parties:

(i) formation or management of legal persons;(ii) acting as (or arranging for another person to act as) a director or

secretary of a company, a partner of a partnership, or a similar position in relation to other legal persons;

(iii) providing a registered office; business address or accommodation,correspondence or administrative address for a company, apartnership or any other legal person or arrangement;

(iv) acting as (or arranging for another person to act as) a trustee of an express trust;

(v) acting as (or arranging for another person to act as) a nomineeshareholder for another person;

and such other persons as are designated by regulation or decree made under this law.

foreign serious offence means an offence

(a) against the law of a foreign State stated in a certificate purporting to beissued by or on behalf of the government of that foreign State; and

(b) that consists of or includes an act or activity which, if it had occurred in(insert country name) , would have constituted a serious offence;

foreign State means any country or territory outside (insert country name) ;

material includes any book, document or other record in any form and any container or article relating to it;

money laundering means the act of a person who

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(a) engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity or is for the purpose of the financing of acts of terrorism;

(b) acquires, receives, possesses, disguises, transfers, converts, exchanges,carries, disposes, uses, removes from or brings into (insert country name)proceeds of any unlawful activity or any assets for the financing of acts of terrorism; or

(c) conceals, disguises or impedes the establishment of the true nature,origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity or and assets to be usedfor the financing of acts of terrorism;

where

(aa) as may be inferred from objective factual circumstance, the person knowsor has reason to believe, that the property is proceeds from any unlawfulactivity or are assets that may be used for the financing of acts of terrorism; or [This means that a court may infer or imply from the conduct and

facts that a person knew that the property he has or has beendealing with was from a crime or was to be used for terrorisme.g.,a ton of explosives in the back of a truck with no right to have theexplosives for business].

(bb) in respect of the conduct of a natural person, the person withoutreasonable excuse fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity or are assets thatmay be used for the financing of acts of terrorism;

[e.g., where a person is given a bag full of money and asks noquestions where it came from, or a person gives him a ton of explosives to "look after]"

person includes, where not otherwise expressly provided for, a natural person, a juridical entity and any institution or body of persons.

politically exposed persons means individuals who are or have been entrusted withprominent public functions in a foreign State, for example Heads of State or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations and important political party officials. [ Note in

particular that this definition refers only to foreign people and does not apply to

politically involved people in the country] prescribed means prescribed by regulations or a Decree made under this Law, and apower to prescribe includes the power to make different provisions in the regulations for different persons or classes of persons; [ prescribed = as set out, as referred to]

premises includes

(a) a structure (whether or not movable or offshore), building, tent, vehicle,vessel, hovercraft or aircraft;

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(b) a place (whether or not enclosed or built upon); and

(c) part of any premises (including premises of a kind referred to inparagraph (a) or (b) );

proceeds of an unlawful activity means any property derived or obtained, directly or indirectly, by any person as a result of any unlawful activity;

process means any summons, warrant, order or other document in respect of acriminal matter that is issued

(a) out of any court; or

(b) out of any court of a foreign State;

or by any judge, magistrate or officer of such a court, as the case may be;[This refers to the "legal process]

property means movable or immovable property of every description, whether situatedin or outside (insert country name) and whether tangible or intangible and includes aninterest in any such movable or immovable property;[This basically means any thing that may have any value of any kind. It may be ahouse, a caror the right to take water from a well or river, or fruit from a treeanything that may be "owned".]

relative, in relation to a person, means

(a) a spouse of that person;

(b) a brother or sister of that person;

(c) a brother or sister of the spouse of that person; or

(d) any lineal ascendant or descendant of that person;

reporting institution means any financial institution, including branches and subsidiariesoutside (insert country name) of that financial institution where the primary place of business is inside (insert country name) and such other persons as may be designatedby regulations;

serious offence means

(a) any of the offences specified in the First Schedule;

(b) an attempt to commit any of those offences; or

(c) the abetment by the author, inceptor or accomplice,in respect of thecommission any of those offences;[abetment = aiding, taking part in]

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specify means specify in writing, and a power to specify includes the power to specifydifferently for different persons or different classes of persons and to amend anyspecification;

transaction includes an arrangement to open an account involving two or more personsand any related transaction between any of the persons concerned and another; and

unlawful activity means any activity which is related, directly or indirectly, to any seriousoffence or any foreign serious offence.

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(2) For the purposes of this Law

(a) a reference to a foreign State includes a reference to

(i) a territory of that foreign State; and

(ii) a ship or aircraft of, or registered in, that foreign State; and

(b) a reference to the law of a foreign State includes a reference to the law inforce in any part of that foreign State.

[Many of the definitions use the word "includes". This means that the word will have its ordinary meaning, but just in case there is any doubt, it will include the meaning that follows.]

PART II

MONEY LAUNDERING OFFENCES

OBJECT OF THIS PART

The object of this Part is to provide for the creation of the offenses of moneylaundering, including the financing of terrorism.[This is the making of the offence of money laundering, which includes thefinancing of terrorism. It is drawn like this so that a person can see that it coversterrorism.]

Article 4Offence of Money Laundering

(1) Any person who

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(a) engages in, or attempts to engage in; or

(b) is the author, perpetrator, inceptor or accomplice, as defined by Article 16of the Penal Law, in respect of the commission of,

money laundering, commits an offence and shall on conviction be liable toa fine not exceeding XXXX (insert currency of the country and penalty amount) or to imprisonment for a term not exceeding five years or toboth.

(2) A person may be convicted of an offence under this Article irrespective of whether there is a conviction in respect of a serious offence or foreign serious offence or that a prosecution has been initiated for the commission of a serious offence or foreignserious offence.[Subsection (2) means that although a person may not have been convicted of aserious or other offence, they can still be convicted for money laundering.]

Article 5

PROTECTION OF INFORMERS AND INFORMATION

(1) Where a person discloses to an enforcement agency his knowledge or belief thatany property is derived from or used in connection with money laundering or any matter

on which such knowledge or belief is based

(a) if he does any act in contravention of Article 4(1) and the disclosurerelates to the arrangement concerned, he does not commit an offenceunder that if the disclosure is made

(i) before he does the act concerned, being an act done with theconsent of the enforcement agency; or

(ii) after he does the act, but the disclosure is made on his initiativeand as soon as it is reasonable for him to make it;

(b) notwithstanding any other written law, the disclosure shall not be treatedas a breach of any restriction on the disclosure of information imposed byany law, contract or rules of professional conduct; and

(c) he shall not be liable for damages for any loss arising out of

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(i) the disclosure; or

(ii) any act done or omitted to be done in relation to the property inconsequence of the disclosure.

[This section protects a person where he acts as an agent of law enforcement authorities (see also Article 66) or where he breaks the money laundering law,confesses and has a reasonable excusee.g., such as he suddenly realized it was money laundering, but he must go to the authorities.]

(2) Where any information relating to an offence under this Law is received by anofficer of the Anti-Money Laundering Intelligence Unit or reporting institution, theinformation and the identity of the person giving the information shall be secret betweenthe officer and that person and everything contained in such information, the identity of that person and all other circumstances relating to the information, including the placewhere it was given, shall not be disclosed except for the purposes of Article 8(1) or

Article 14.[The name of people giving information shall not be disclosed.]

Article 6

Restrictions on revealing disclosure under Article 5

(1) No person shall, subject to Article 6 (2)

(a) reveal that a disclosure was made under Article 5;

(b) reveal the identity of any person as the person making the disclosure; or

(c) answer any question if the answer would lead, or would tend to lead, tothe revealing of any fact or matter referred to in paragraph (a) or (b) .

[No person may say that there has been a disclosure or who has made the

disclosure unless Article 6(2) applies.]

(2) Article 6 (1) shall not apply to a witness in any civil or criminal proceedings

(a) for an offence under Article 4(1) or sub-article (3) of this Article; or

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(b) where the court is of the opinion that justice cannot fully be done betweenthe parties without revealing the disclosure or the identity of any personas the person making the disclosure.[If the case needs the name of the person for justice to be done,then it can be disclosed, but 6(3) means that the name cannot beused anywhere else or told to any person.]

(3) No person shall publish in writing or broadcast any information, including a reportof any civil or criminal proceedings but excluding information published for statisticalpurposes by the Anti-Money Laundering Intelligence Unit or the Government, so as toreveal or suggest

(a) that a disclosure was made under Article 5; or

(b) the identity of any person as the person making the disclosure.

(4) Article 6 (3) shall not apply in respect of proceedings against the person makingthe disclosure for an offence under Article 4(1) or Article 6 (1).

(5) If information is published or broadcast in contravention of paragraph (3), each of the following persons, namely

(a) in the case of publication as part of a newspaper or periodical publication,any proprietor, editor, publisher and distributor of the newspaper or periodical publication;

(b) in the case of a publication otherwise than as part of a newspaper or periodical publication, any person who publishes it and any person whodistributes it;

(c) in the case of a broadcast, any person who broadcasts the informationand, if the information is contained in a program, any person whotransmits or provides the program and any person having functions in

relation to the program corresponding to those of the editor of anewspaper or periodical publication,

commits an offence and shall on conviction be liable to a fine not exceeding XXXX(insert currency of the country) or to imprisonment for a term not exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding XXXX(insert currency of the country and the amount of the fine) for each day during which theoffence continues after conviction.

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(6) In this Article, broadcast includes any broadcast by radio, film, videotape,television or electronic media.

PART III

FINANCIAL INTELLIGENCE

ARTICLE 7Establishment of the Anti-Money Laundering Intelligence Unit

(1)(2) The Bank of (insert country name) shall establish an Anti-Money LaunderingIntelligence Unit that has a director and deputy director equivalent to the director or deputy director of the department. They are to execute their roles and responsibilitiesthrough collecting information, analyses, and providing information to the individual or

juridical entity that is responsible for measuring the implementation, discovery andprevention of money laundering activities.[This sub-article establishes the Anti-money Laundering Intelligence Unit. Pleasenote that it uses a model where the FIU is placed within the Central Bank of theCountry]

(3) The Government shall be responsible for the appointment and dismissal of thedirector of the Anti-Money Laundering Intelligence Unit from the role and responsibilitiesbased upon the request of the Governor of the Bank of (insert country name). For theDeputy Director position, the Governor of the Bank of (insert country name) isresponsible for appointments and dismissals.

(4) The term of appointment in the Anti-Money Laundering Intelligence Unit is 4years from the date of appointment. After the term is complete the position may beresumed again, no more than 2 terms total, based upon the request of the Governor of the Bank of (insert country name).

(5) The Anti-Money Laundering Intelligence Unit shall coordinate and cooperate withthe Economic Police of the Ministry of Interior, prosecutors in the Ministry of Justice,Customs Department of the Ministry of Finance and other concerned organizations of the Government and international organizations that are directly involved in anti-moneylaundering activities.[This sub-article gives power to give information to police, prosecution and likeauthorities overseas.]

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Article 8.PROVISIONS RELATING TO THE ANTI-MONEY LAUNDERING INTELLIGENCE

UNIT

(1) For the avoidance of doubt, it is declared that the Anti-Money LaunderingIntelligence Unit may exercise its powers under this Article in respect of reportinginstitutions, and shall["avoidance of doubt" = to make it clear the AMLIU has the following powers toexercise].

(a) Receive, investigate and analyze information and reports from anyperson, including reports issued by reporting institutions under Article 14;

(b) send any report received under paragraph (a) or any information comingfrom any such report to an enforcement agency or, where relevant to acorresponding authority, subject to the provisions of Article 10, if it is satisfied or has reason to believe or suspect that a transaction involves proceeds of anunlawful activity or a serious offence is being, has been or is about to becommitted; and[It may refer information to police, etc. if it thinks there is money laundering.] (c) send any information derived from an examination carried out under PartIV to an enforcement agency or where relevant, to a corresponding authority ,subject to the provisions of Article 10, if it has reason to suspect that atransaction involves proceeds of an unlawful activity or a serious offence isbeing, has been or is about to be committed.

(d) expeditiously investigate and analyse any report received from acorresponding authority, as if it were received from a reporting institution. [ shall quickly investigate all matters referred to it from overseas and report back.]

(e) warn reporting institutions of any possible threats by fraud and shall do soby the issue of typologies or methodologies as and when required.[It shall be able to give warning to institutions in the country of possibleaction by criminals where a fraud may be detected. This can involve aforeign agency giving a warning that a suspected criminal is about to enter the country to carry out a fraud on the people or an institutiona bank.This power goes beyond those suggested in the FATF Recommendations,however many countries are adopting such a policy to assist in the

protection of the economy]

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(a) compile statistics and records;

(b) give instructions to a reporting institution in relation to any report or information received under Article 14, whether or not the reportinginstitution made the report;

[This sub-clause is used to request information for investigation.]

(c) make recommendations to the relevant supervisory authority,

enforcement agency and reporting institutions arising out of any report or information received under Article 8 (2); and

[This sub-clause may be used to advise a regulatory authority that anentity-person has broken the law or not complied with this law or that the

procedures are not working.] (d) create training requirements and provide training for any reporting

institutions in respect of their transactions and reporting and recordkeeping obligations under Part IV.

Article 9.Authorisation to release information

(1) The Anti-Money Laundering Intelligence Unit may, in writing, authorize anyenforcement agency or its designated officers to have access to such information as the Anti-Money Laundering Intelligence Unit may specify for the purposes of performing theenforcement agencys functions.

(2) The Anti-Money Laundering Intelligence Unit may, in writing, authorize theMinister of Justice or his designated officer to have access to such information as the

Anti-Money Laundering Intelligence Unit may specify for the purpose of dealing with aforeign States request in relation to mutual assistance in criminal matters.

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[Article 10 deals with the sharing of information, the international cooperation part of the law.]

Article 10.Communication to a foreign State

(1) Notwithstanding any other written law or rule of law, the Anti-Money Laundering

Intelligence Unit may communicate any thing disclosed to it under Article 14 to acorresponding authority of a foreign State if

(a) there exists an arrangement or understanding between (insert country name) and a foreign State under which the corresponding authority of theforeign State has agreed to communicate to (insert country name), upon(insert country name)s request, information received by thecorresponding authority that corresponds to any thing required to bedisclosed to the Anti-Money Laundering Intelligence Unit under Article14; and[That is, if there is an arrangement between countries.]

(b) the Anti-Money Laundering Intelligence Unit is satisfied that the

corresponding authority has given appropriate undertakings

(i) for protecting the confidentiality of any thing communicated to it;and

(ii) (iii) for controlling the use that will be made of it, including an

undertaking that it will not be used as evidence in anyproceedings.

[These conditions are generally contained in the arrangementsreferred to in (a).]

(c) Notwithstanding that there may not be an agreement or understandingbetween (insert country name) and a foreign State the Anti-MoneyLaundering Intelligence Unit may, after consultation with the Minister of Finance communicate with a corresponding authority, or where no suchauthority exists, an appropriate law enforcement authority, anythingdisclosed to it under Article 14 in the event that such communicationsmay assist in the prevent economic damage being caused to such foreignState.

[(c) gives the right to the Minister to authorize giving information wherethere is no agreement or arrangement. It could be expanded to include not

just economic damagebut also "injury to people"for example by thefinancing of terrorism.]

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(2) In this Article, corresponding authority, in relation to a foreign State, means theauthority of that foreign State responsible for receiving information that corresponds toany thing required to be disclosed to the Anti-Money Laundering Intelligence Unit under

Article 14.

Article 11.Prohibited disclosure

Subject to Article 12, no person who has obtained information from a Anti-MoneyLaundering Intelligence Unit under Part IV shall

(a) while he is authorized under Article 9, disclose or communicate the

information except to another officer authorized under that Article, for thepurposes of, or in connection with, the performance of his duties; and[This is an important clause towards international cooperation.] (b) when he is no longer authorized under Article 9, make a record of the

information, or disclose or communicate the information in anycircumstances.

[Article 12 sets out a number of instances where disclosure of information may bemade.] Article 12.

Permitted disclosure (1) Nothing in Article 11 shall prevent the communication of the Anti-MoneyLaundering Intelligence Units information under this Part with respect to a prosecutionor legal proceedings in connection with the commission of a serious offence, a foreignserious offence or an offence under Article 4(1).

(2) Nothing in Article 11 shall prevent the communication of the Anti-MoneyLaundering Intelligence Units information under this Part in respect of the affairs of aperson by the person authorized under Article 9 to

(a) if the person is not a juridical entity, that person;

(b) if the person is a juridical entity

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(i) any person who is, or has been, a director or an officer of the

company; or

(ii) any person who is, or has been directly involved in, or responsiblefor, the preparation of information furnished on behalf of the

juridical entity; or

(c) the person who furnished the information to the Anti-Money LaunderingIntelligence Unit.

(3) No person to whom the Anti-Money Laundering Intelligence Unit or personauthorized under Article 9 communicates any information under this Part and theinformation does not relate to the affairs of the person shall make a record of theinformation or disclose, or communicate the information to any person in anycircumstances. [ That is, a person who receives information from the AMLIU may not pass it on.]

(4) Any person who contravenes paragraph (3) commits an offence and shall onconviction be liable to a fine not exceeding xxxx (insert currency of the country and theamount of the fine) or to imprisonment for a term not exceeding one year or to both.

(5) Except where it is necessary to do so for the purposes of carrying into effect theprovisions of this Law, a person who obtains information from the Anti-MoneyLaundering Intelligence Unit under this Part shall not be required to produce in court anydocument containing any of the information or to disclose or communicate to any courtsuch information. [ A court cannot compel a disclosureunless it is for the purposeof this law.]

[This Part relates to the obligations of the financial or reporting institutions. Thedefinition of "reporting institution" in Article 3 is wider than that of "financial

institution" as it refers to branches outside the country and other persons as may be included in regulations.] PART IV

REPORTING OBLIGATION

S

Article13.Recordkeeping by reporting institutions

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(1) A reporting institution shall keep a record of any transaction involving thedomestic currency or any foreign currency exceeding such amount as the Anti-MoneyLaundering Intelligence Unit may from time to time specify, which amounts shall be, untilotherwise specified,

(a). For customers of reporting institutions other than those specificallyreferred to, USD 15,000 or equivalent in other currencies,

(b) For casinos, including internet casinos, USD 3,000 or equivalent in other currencies,

(c) For dealers in precious metals and dealers in precious gems whenengaged in any cash transaction, USD 15,000 or equivalent in other currencies. [ NB POLICY ISSUES]

[The amount can be changed by regulation. The amounts here are thosecontained in the FATF recommendations of June 2003.]

(2) The record referred to in Article 13(1) shall be in such form as the Anti-MoneyLaundering Intelligence Unit may specify.[The source of the record will have to be the subject of a regulation.]

(3) The record referred to in Article 13 (1) shall include the following information for each transaction:

(a) the identity and address of the person in whose name the transaction isconducted;

(b) the identity and address of the beneficiary or the person on whose behalf the transaction is conducted, where applicable;

(c) the identity of the accounts affected by the transaction, if any;

(d the type of transaction involved, such as deposit, withdrawal, exchange of

currency, cheque cashing, purchase of cashiers cheques or moneyorders or other payment or transfer by, through, or to such reportinginstitution;

(e) the identity of the reporting institution where the transaction occurred; and

(f) the date, time and amount of the transaction,

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and shall also include such other information as the Anti-Money LaunderingIntelligence Unit may specify in writing.

(4) For the purposes of this Part, multiple cash transactions in the domestic or foreigncurrency which, in aggregate, exceeds the amount specified by the Anti-MoneyLaundering Intelligence Unit pursuant to paragraph (1) shall be treated as a singletransaction if they are undertaken by or on behalf of any one person during any one dayor such other period as the Anti-Money Laundering Intelligence Unit may specify.

[This means that a person cannot avoid the report by breaking the money up intoseparate but smaller amounts in one dayall amounts for one person are to beadded together.]

Article 14.Report by reporting institutions.

(1) A reporting institution shall within one business day or earlier, report to the Anti-Money Laundering Intelligence Unit any transaction

(a) exceeding the amount specified by the Anti-Money LaunderingIntelligence Unit under Article13 (1) ;

(b) where the identity of the persons involved in a transaction or the

transaction itself or any other circumstances concerning any transaction

gives any officer or employee of the reporting institution reason to suspectthat the transaction involves proceeds of an unlawful activity or moneylaundering; or [That is if it is a suspicious transaction that may involve money laundering. What is or is not suspicious is not specified. The regulations could give examples, but one does not wish to limit what may be reported. If it does not look right or

proper, it should be reported. If it is a transaction that appears tohave no purpose, it should be reported. Regulations can be

provided to cover this in due course. ]

(c) where the identity of the persons involved in a transaction or thetransaction itself or any other circumstances concerning any transactiongives any officer or employee of the reporting institution reason to suspectthat the transaction involves proceeds of an unlawful activity or moneylaundering, or

(d) where the reporting institution has received a direction or request from the Anti-Money Laundering Intelligence Unit for a transaction or series of transactions to be reported.

[If a person is a known "suspect" or listed or the transaction is of a particular type, it is to be reported.]

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(2) Any report lodged in accordance with this Article shall be in a form specified bythe Anti-money Laundering Intelligence Unit and shall contain the information set out inSchedule 2 to this Law. [ Schedule 2 has a list. The Regulations will specify theform.] (3) To avoid any doubt, an auditor of a reporting institution who, during the course of an audit finds a transaction that he suspects to involve the proceeds of an unlawfulactivity or may involve money laundering by either a customer of a reporting institution or by the reporting institution or finds a breach of the provisions of this Law, such auditor shall immediately lodge a report with the Anti-Money Laundering Intelligence Unit. [ Anauditor who finds something suspicious must report it.]

(4) An offence is committed by a reporting institution or its employees, staff,

directors, owners or other authorized representatives who, acting as such, wilfully fail tocomply with the obligations in Article 14, or who wilfully make a false or falsified report tothe Anti-Money Laundering Intelligence Unit. [ If employees, etc. on purpose breachthis Article, it is one offence.] (5) Without prejudice to criminal and/or civil liabilities for offences connected tomoney laundering, a person guilty of an offence under the provisions of paragraph(1)shall on conviction be liable to a fine not exceeding xxxx ( insert currency of the country and the amount of the fine ) and in addition the licence of such financial institution tooperate as such may be revoked or suspended by the issuing authority. [ NB TOcross reference ART. 86 FOR PENALTY]

Article 15Centralization of information

15. A reporting institution shall, where possible provide for the centralization of theinformation collected pursuant to this Part.

[This article is intended to refer to the transfer of information to the AMLIU by adata-computer processwhen this is possible, affordable and a proper way of doing it.]

Article 16.Identification of account holder

(1) A reporting institution

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(a) shall maintain accounts in the name of the account holder; and

(b) shall not open, operate or maintain any anonymous account or anyaccount which is in a fictitious, false or incorrect name and shall report assuspicious any attempt by a person to open such an account; and

(c) shall identify whether an account holder is a politically exposed person.[That is the identity of every person shall be known and there will be noanonymous accounts or accounts in a false name.]

(2) A reporting institution shall

(a) verify, by reliable means, the identity, representative capacity, domicile,legal capacity, occupation or business purpose of any person, as well asother identifying information on that person, whether he be an occasionalor usual client, through the use of documents such as identity card,passport, birth certificate, drivers licence and constituent document, or any other official or private document, when establishing or conductingbusiness relations, particularly when opening new accounts or passbooks, entering into any fiduciary transaction, renting of a safedeposit box, or performing any cash transaction exceeding such amountas the Anti-Money Laundering Intelligence Unit may specify; and

(b) include such details in a record.[A person shall be identified using official documents when establishing new accounts, undertaking transactions involving money, using a safety deposit box or in all transactions where the AMLIU says in theRegulations.]

(3)

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(3) Any reporting institution which contravenes Article 17(1) or (2) commits anoffence and shall on conviction be liable to a fine not exceeding XXXX ( insert currency of the country and the amount of the fine ) or to imprisonment for a term not exceedingone year or to both.

ARTICLE 18Opening account in false name.

[This links to Article 16(2).] (1) No person shall open, operate or authorize the opening or the operation of anaccount with a reporting institution in a fictitious, false or incorrect name.[There is a total ban on the use of made up, false or changed names for peoplehaving accounts.]

(2) Where a person is commonly known by two or more different names, the personshall not use one of those names in opening an account with a reporting institutionunless the person has previously disclosed the other name or names to the reportinginstitution. [ All names used by a person must be disclosed, although only one will appear for the accountthe other names must be kept on the account opening records.]

(3)(4) Where a person using a particular name in his dealings with a reporting institutiondiscloses to it a different name or names by which he is commonly known, the reportinginstitution shall make a record of the disclosure and shall give the Anti-MoneyLaundering Intelligence Unit a copy of that record. [ If a different name is later used,then a report shall be made.]

(5) Where a politically exposed person opens or attempts to open an account with areporting institution it shall report such fact to the Anti-Money Laundering IntelligenceUnit as if it were a report under Article 14. [ All accounts for foreign politicians, etc.see the definition of "politically exposed person" in Article 3must be reported.This complies with the June 2003 FATF recommendations.]

(5) For the purposes of this Article

(a) a person opens an account in a false name if the person, in opening theaccount, or becoming a signatory to the account, uses a name other thana name by which the person is commonly known;

(b) a person operates an account in a false name if the person does any actor thing in relation to the account (whether by way of making a deposit or withdrawal or by way of communication with the reporting institution

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concerned or otherwise) and, in doing so, uses a name other than aname by which the person is commonly known; and

(c) an account is in a false name if it was opened in a false name, whether before or after the commencement date of this Law.

[These are examples of the use of a false name. (c) has a retrospectiveeffect. This means that all reporting institutions will have to obtain thecorrect details for all account holders and close all accounts in false or incorrect names.]

(6) Any person who contravenes this Article commits an offence and shall onconviction be liable to a fine not exceeding xxxxx (insert currency of the country and theamount of the fine ) or to imprisonment for a term not exceeding one year or to both.

Article 19COMPLIANCE PROGRAM

(1) A reporting institution shall adopt, develop and implement internal programs,policies, procedures and controls to guard against and detect any offence under thisLaw.

(2) The programs in paragraph (1) shall include

(a) the establishment of procedures to ensure high standards of integrity of its employees and a system to evaluate the personal, employment andfinancial history of these employees;

[This means that no criminals or suspected criminals may be employed.] (b)ongoing employee training programs, such as knowyourcustomer

programs, and instructing employees with regard to the responsibilitiesspecified in Articles 13, 14, 15, 16 and 17 and in respect of politicallyexposed people; and

[There must be training.]

(c) an independent audit function to check compliance with such programs.[All auditors must check that there are policies, procedures, training,compliance and integrity checks being made.]

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(3) A reporting institution shall monitor any complex or unusual or large transactionor any unusual patterns of transactions that have no apparent economic or lawfulpurpose or where there are transactions involving persons in or from a jurisdiction thatdoes not have adequate systems to prevent or deter money laundering or electronictransfer of funds without originator details being recorded. [ This is an example of asuspicious type of conduct.]

(4) A reporting institution shall implement compliance programs under paragraph (1)on its branches and subsidiaries in and outside (insert country name) .

(5) A reporting institution shall also designate compliance officers at managementlevel in each branch and subsidiary who will be in charge of the application of theinternal programs and procedures, including proper maintenance of records andreporting of suspicious transactions.[A person or persons must be appointed to ensure compliance with this law.[

(6) A reporting institution shall develop audit functions to evaluate such policies,procedures and controls to test compliance with the measures taken by the reportinginstitution to comply with the provisions of this Law and the effectiveness of suchmeasures.[Internal audit checks must be made to make sure that this law is complied with.[

(7) A reporting institution shall within three months of the commencement of thisLaw provide to the Anti-Money Laundering Intelligence Unit a copy of all program, policystatements and other such documents written in compliance with this Article. [ NBPOLICY AS TO THE AMOUNT OF TIME TO BE GIVEN FOR COMPLIANCE][The AMLIU must be given a copy of the policy of a reporting institution. In

practice, this is an audit tool to ensure compliance and awareness. A failure togive this is an offence caught by Article 81but is subject to Article 22(3).]

Article 20Secrecy obligations overridden

The provisions of this Part shall have effect notwithstanding any obligation as to secrecyor other restriction on the disclosure of information imposed by any written law or otherwise. [Reports and information is to be provided even though there may besecrecy lawsthey do not apply and are overridden by this Law].

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Article21Obligations of supervisory or licensing authority.

(1) The relevant supervisory authority of a reporting institution or such other personas the relevant supervisory authority may deem fit may

(a) adopt the necessary measures to prevent or avoid having any personwho is unsuitable from controlling, or participating, directly or indirectly, inthe directorship, management or operation of the reporting institution;

[Regulations for supervisory authorities must stop criminals being involved in reporting institutions.]

(b) examine and supervise reporting institutions, and regulate and verify,through regular examinations, that a reporting institution adopts andimplements the compliance programs in Article 19;

[Conduct as part of an audit program, compliance audits to ensure that thisLaw is obeyed.]

(c) issue guidelines to assist reporting institutions in detecting suspicious

patterns of behavior in their clients and these guidelines shall bedeveloped taking into account modern and secure techniques of moneymanagement and will serve as an educational tool for reportinginstitutions personnel; and

[Provide guidelines, typologies or methodologies to help educate about money laundering.] (d) cooperate with other enforcement agencies and lend technical

assistance in any investigation, prosecution or proceedings relating to anyunlawful activity or offence under this Law.

[Give all necessary assistance to help under this Law.]

(2) The licensing authority of a reporting institution may, upon the recommendationof the Anti-Money Laundering Intelligence Unit, revoke or suspend the reportinginstitutions licence if it has been convicted of an offence under this Law.[If a reporting institution has breached this law, its license may be revoked or suspended. This is a wide power and may be seen as effectively a new power for some licensing authorities. It shows how important this Law is to be regarded.]

(3) The relevant supervisory authority shall report promptly to the Anti-MoneyLaundering Intelligence Unit any information received from any reporting institutionsrelating to transactions or activities that could be related to any unlawful activity or offence under this Law.[Supervisory authorities are essentially agents of the AMLIU for detecting unlawful activity or breaches of this Law.]

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Article 22Powers to enfor

cement and compliance

[These are powers to enforce.] (1) A compliance officer of a reporting institution shall take all reasonable steps toensure the reporting institutions compliance with its obligations under this Part.[There is an obligation to comply with this Law.]

(2) The Anti-Money Laundering Intelligence Unit, upon application to the court andsatisfying the court that a reporting institution has failed without reasonable excuse tocomply in whole or in part with any obligations in this Law, shall obtain an order againstany or all of the officers or employees of that reporting institution on such terms as thecourt deems necessary to enforce compliance with such obligations.[The AMLIU may obtain orders to ensure compliance with this Law.]

(3) Notwithstanding Article 22 (2), the Anti-Money Laundering Intelligence Unit maydirect or enter into an agreement with any reporting institution that has withoutreasonable excuse failed to comply in whole or in part with any obligations in this Part toimplement any action plan to ensure compliance with its obligations under this Part.[Rather than obtaining an order from the court, the AMLIU may enter into anagreement for compliance.]

(4) Any person who contravenes Article 22 (1) or fails to comply with a directiveunder Article 22 (3), commits an offence and shall on conviction be liable to a fine notexceeding XXXX ( insert currency of the country and the amount of the fine ) or toimprisonment for a term not exceeding six months or to both, and, in the case of acontinuing offence, to a further fine not exceeding XXXX ( insert currency of the country and the amount of the fine ) for each day during which the offence continues after conviction.[If these is no compliance, or a breach of the terms of an Article 22(3) agreement,the Law has been broken.]

Article 23Currency reporting at border .

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(1) A person leaving or entering (insert country name) with an amount in cash,negotiable bearer instruments or both, gems or precious metals exceeding such valueas the Bank of (insert country name) may determine periodically, shall, immediatelybefore leaving or entering (insert country name) , as the case may be, declare to thecustoms officials stationed at the border such amount in such form as the Anti-MoneyLaundering Intelligence Unit may specify. The customs officials shall send all suchdeclarations to the Anti-Money Laundering Intelligence Unit.[The Bank of (insert country name) shall specify a value for cross-border reporting of the movement of money, bearer instruments, gems and preciousmetals.]

(2) Any person who contravenes Article 23(1) commits an offence and shall onconviction be liable to a fine not exceeding XXXX ( insert currency of the country and theamount of the fine ) or to imprisonment for a term not exceeding one year or to both.

(3) Any declaration required to be made or given under Article 23 (1) shall for thepurposes of the Customs Law, be deemed to be a declaration in a matter relating tocustoms. [ Check if relevant NB Regulations for additional warning signage at theborder.]

(4) All reporting institutions shall maintain records of all wire, electronic and crossborder transmissions or movements of money, such records shall include originator information, being the name, address and account number and all related messages thatare sent and such other details as will permit the tracing of the money so sent.[Complies with Special Terrorist Recommendation vii

All electronic transfers shall be recorded with all details so that they can betraced.]

Article 24.PROTECTION OF PERSONS REPORTING

(1) No civil, criminal, administrative, disciplinary or other proceedings shall bebrought against a person who

(a) discloses or supplies any information in any report made under this Part;or

(b) supplies any information in connection with such a report, whether at thetime the report is made or afterwards;

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in respect of

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(aa) the disclosure or supply, or the manner of the disclosure or supply, by that person, of the information referred to in paragraph(a) or (b) ; or

(bb) any consequences that follow from the disclosure or supply of thatinformation, unless the information was disclosed or supplied in bad faith.[This means that if a person was acting as part of a criminal plan tomake the report he can be taken to court.]

[This is an indemnity article to protect people who comply with making reportsfrom being taken to court. It covers all proceedings.]

(2) In proceedings against any person for an offence under this Part, it shall be adefense for that person to show that he took all reasonable steps and exercised all duediligence to avoid committing the offence.

Article 25.Examination of a reporting institution

(1) For the purposes of monitoring a reporting institutions compliance with this Part,the Anti-Money Laundering Intelligence Unit may authorize an examiner to examine

(a) any of the reporting institutions records or reports that relate to itsobligations under this Part, which are kept at, or accessible from, thereporting institutions premises; and

(b) any system used by the reporting institution at its premises for keepingthose records or reports.

[This means that the AMLIU may appoint a persongenerally an employee toundertake an onsite inspection to ensure compliance with this Law.]

(2) In carrying out the examination under Article 25 (1), the examiner may

(a) ask any question relating to any record, system or report of a reportinginstitution; and

(b) make any note or take any copy of the whole or part of any businesstransaction of the reporting institution.


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(3) The examiner so appointed may provide evidence of his examination in anyproceedings. [ May not be needed-check with existing laws of the country]

Article 26.Examination of person other than a reporting institution.

(1) An examiner authorized under Article 25 may examine

(a) a person who is, or was at any time, a director or an officer of a reportinginstitution or of its agent;

(b) a person who is, or was at any time, a client, or otherwise having dealingswith a reporting institution; or

(c) a person whom he believes to be acquainted with the facts andcircumstances of the case, including an auditor or an advocate andsolicitor of a reporting institution,

and that person shall give such document or information as the examiner mayrequire within such time as the examiner may specify.

[This is an investigator's power to be used to assist in an investigation.]

(2) Any person who contravenes Article 26(1) commits an offence and shall onconviction be liable to a fine not exceeding xxxx ( insert currency of the country and theamount of the fine ), or to imprisonment for a term not exceeding one year or to both,and, in the case of a continuing offence, to a further fine not exceeding xxxx ( insert currency of the country and the amount of the fine ) for each day during which theoffence continues after conviction.

(3) Notwithstanding any other written law, an agent, including an auditor or anadvocate and solicitor of a reporting institution, shall not be liable for breach of a contractrelating to, or a duty of, confidentiality for giving any document or information to theexaminer.

[This Article removes the confidentiality obligations for lawyers and auditors and they cannot be taken to court for complying with the Law.]

Article 27.

Appearance before examiner


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(1) A director or an officer of a reporting institution examined under Article 25(1), or aperson examined under Article26(1), shall appear before the examiner at his office uponbeing called to do so by the examiner at such time as the examiner may specify.[A person to be examined must appear for the examination. As to service of notices, see Article 75.]

(2) Any person who contravenes Article 27(1) commits an offence and shall onconviction be liable to a fine not exceeding xxxx ( insert currency of the country and theamount of the fine ) or to imprisonment for a term not exceeding one year or to both, and,in the case of a continuing offence, to a further fine not exceeding xxxx ( insert currency of the country and the amount of the fine ) for each day during which the offencecontinues after conviction.

Article 28.Destruction of examination records

The Anti-Money Laundering Intelligence Unit may destroy any document or copy of suchdocument made or taken pursuant to an examination under Articles 25 and 26 within fiveyears of the examination except where a copy of the document has been sent to an

enforcement agency.

PART V

INVESTIGATION[This part provides for general powers of investigation.]

Article 29.Investigation by the Anti-Money Laundering Intelligence Unit and enforcement

agencies.

(1) Where the Anti-Money Laundering Intelligence Unit has reason to suspect thecommission of an offence under Parts II, III or IV, whether or not a report has been madeto it, the Anti-Money Laundering Intelligence Unit shall cause an investigation to bemade and for such purpose may exercise all the powers of investigation provided for under this Law.


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[An investigation can be made even though there has been no report made. It canalso be an investigation as to a breach of this Law, not just for money laundering,compliance as well.]

(2)(2) The Anti-Money Laundering Intelligence Unit may instruct any person to takesuch steps as may be necessary to facilitate an investigation under Article 29(1).[The AMLIU can give a directive that a person cooperate with it.]

(3) The Anti-Money Laundering Intelligence Unit shall coordinate and cooperatewith any enforcement agency in and outside (insert country name ) with respect to aninvestigation into any serious offence or foreign serious offence, as the case may be.[The AMLIU shall be able to cooperate with all enforcement agencies inside and outside the country]

Article 30.Appointment of investigating officer

(1) For purposes of an investigation under this Part, the Anti-Money LaunderingIntelligence Unit may appoint its employee or any other person to be an investigatingofficer.

(2) An investigating officer who is not an employee of the Anti-Money LaunderingIntelligence Unit relevant enforcement agency shall be subject to, and enjoy such rights,protection, and indemnity as may be specified in this Law or other written law applicableto an employee of the Anti-Money Laundering Intelligence Unit.[A no-employee investigator has the same protection as an employee.]

(3) An investigating officer shall be subject to the direction and control of the Anti-Money Laundering Intelligence Unit.

Article 31Powers of an investigating officer

(1) Where an investigating officer is satisfied, or has reason to suspect, that aperson has committed an offence under this Law, he may, without a search warrant

(a) enter any premises belonging to or in the possession or control of theperson or his employee, and in the case of a juridical entity, its director or manag

er;


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(b) search the premises for any property, record, report or document; and (c) inspect, make copies of or take extracts from any record, report or

document so seized and detained.[This is a power to search and seize without a warrant. There are policy considerations here that need to be addressed]

(2) The occupant of the premises entered in the course of investigation, or anyperson on his behalf, shall be present during the search, and shall cooperate with suchinvestigation.[The occupant of premises must be present for the search (could be employee or officer), must cooperate and will be given a list of everything taken].

Article 31Powers of an investigating officer

(1) Where an investigating officer is satisfied, or has reason to suspect, that aperson has committed an offence under this Law, he may, without a search warrant

(a) enter any premises belonging to or in the possession or control of theperson or his employee, and in the case of a juridical entity, its director or

manager;

(b) search the premises for any property, record, report or document; and (c) inspect, make copies of or take extracts from any record, report or

document so seized and detained.[This is a power to search and seize without a warrant.]

(2) The occupant of the premises entered in the course of investigation, or anyperson on his behalf, shall be present during the search, and shall cooperate with suchinvestigation. and a copy of the list prepared under subsection (4) shall be delivered tosuch person at his request.[The occupant of premises must be present for the search (could be employee or officer), must cooperate and will be given a list of everything taken.]

Article 32Power to examine persons


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(1) Notwithstanding any written law, or oath, undertaking or requirement of secrecyor confidentiality to the contrary, or an obligation under an agreement or arrangement,express or implied, to the contrary, an investigating officer conducting an investigationshall have the power to administer an oath or affirmation to the person being examined.

[An investigating officer may give an oath to a person to be examined.]

(2) An investigating officer may order, orally or in writing, any person whom hebelieves to be acquainted with the facts and circumstances of the case

(a) to attend before him for examination;

(b ) to produce before him any property, record, report or document; or

(c) to furnish to him a statement in writing made on oath or affirmation settingout such information as he may require.

[An order to attend before an investigator may be given by the investigator.]

(3) Any person who contravenes Article 32(2) commits an offence and shall onconviction be liable to a fine not exceeding XXX ( insert currency of the country and theamount of the fine ) or to imprisonment for a term not exceeding one year or to both, and,in the case of a continuing offence, to a further fine not exceeding XXXX ( insert currency of the country and the amount of the fine ) for each day during which the offencecontinues after conviction.

(4) The person examined under Article 32 (2) shall be legally bound to answer allquestions relating to such case put to him by the investigating officer, [This paragraphcould be finished here if paragraph (8) is retained.] but he may refuse to answer anyquestion the answer to which would have a tendency to expose him to a criminal chargeor penalty or forfeiture. [ This is a policy issue and needs to be examined. It mayequally provide for a person not having the right to refuse to answer, but their answer cannot be used against them in any proceeding.]

[The person must answer the questionsunless it may result in a criminal charge.]

(5) A person making a statement under paragraph (2) (c) shall be legally bound tostate the truth, whether or not such statement is made wholly or partly in answer to thequestions of the investigating officer. [ The answers must be truthful.]

(6) An investigating officer examining a person under Article 32 (2) shall first informthat person of the provisions of paragraphs (4) and (5).[The investigator must tell a person about paragraphs (4) and (5).]


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(7) A statement made by any person under paragraph (2) (c) shall, whenever possible, be reduced into writing and signed by the person making it or affixed with histhumb print

(a) after it has been read to him in the language in which he made it; and

(b) after he has been given an opportunity to make any correction he maywish.

(8) No statement obtained by an investigating officer may be used in a court of law

or for other proceedings. [ If this paragraph remains, then one could include acompulsion to answer all questions in paragraph (4) as it is a true tool for investigations. This is now the case in many countries.]

(9) Any person who

(a) fails to appear before an investigating officer as required under paragraph(2) (a) ;

(b) refuses to answer any question put to him by an investigating officer

under Article 32(4); or

(c) furnishes to an investigating officer any information or statement that isfalse or misleading in any material particular,

commits an offence and shall on conviction be liable to a fine not exceeding XXXX(insert currency of the country and the amount of the fine ) or to imprisonment for a termnot exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding XXXX (insert currency of the country and the amount of the fine ) for each day during which the offence continues after conviction.

Article 33.Obstruction to exercise of powers by an investigating officer.


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Any person who

(a) refuses any investigating officer access to any premises, or fails to submitto the search of his person;

(b) assaults, obstructs, hinders or delays an investigating officer in effectingany entrance which he is entitled to effect;

(c) fails to comply with any lawful demands of any investigating officer in theexecution of his duties under this Part;

(d) refuses to give to an investigating officer any property, document or information which may reasonably be required of him and which he has in

his power to give;

(e) f ails to produce to, or conceals or attempt to conceal from, aninvestigating officer, any property, record, report or document, which theinvestigating officer requires; [ conceals = hides]

(f) furnishes to an investigating officer as true any information which he

knows or has reason to believe to be false; or rescues or attempts torescue any thing which has been duly seized; [ furnishes = gives]

(g) before or after any search or seizure, breaks or otherwise destroys anything to prevent its seizure, or the securing of the property, record, reportor document by any enforcement agency following the investigation of bythe investigating officer,

commits an offence and shall on conviction be liable to a fine not exceeding xxxx (insertcurrency of the country) or to imprisonment for a term not exceeding one year or to both,and, in the case of a continuing offence, to a further fine not exceeding xxxx (insertcurrency of the country) for each day during which the offence continues after conviction.


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Article34

TIPPING OFF[Telling]

(1) It is an offence for any person who knows or suspects that an investigation intomoney laundering has been, is being or is about to be made, or that an order has beenmade or may be made requiring the delivery or production of any document to divulgethat fact or other information to another whereby the investigation is likely to beprejudiced. [ divulge = tell or give information about

prejudiced = damaged badly affected]

(2) It is an offence for any person who knows or suspects that a disclosure by afinancial institution has been made to the Anti-Money Laundering Intelligence Unit

Authority under Article 14 to divulge that fact or other information to another wherebyany investigation that might be conducted following the disclosure is likely to beprejudiced. (3) A person guilty of an offence under the provisions of Article 34 (1) or (2) of this

Article shall be liable on conviction to a fine not exceeding XXXX ( insert currency of thecountry and the amount of the fine )

(4) Nothing in Article 34(1)and (2) makes it an offence for an advocate and solicitor or his employee to disclose any information or other matter

(a) to his client or the clients representative in connection with the giving of advice to the client in the course and for the purpose of the professionalemployment of the advocate and solicitor; or

(b) to any person in contemplation of, or in connection with and for thepurpose of, any legal proceedings.

(5) Article 34 (4)(2) does not apply in relation to any information or other matter which is disclosed with a view to furthering any illegal purpose.

(6) In proceedings against a person for an offence under this Article, it is a defenceto prove that

(a ) he did not know or suspect that the disclosure made under paragraph (1)

(b) was likely to prejudice the investigation; or

(b) he had lawful authority or reasonable excuse for making the disclosure.


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(7) An investigating officer or other person does not commit an offence under this Article in respect of anything done by him in the course of acting in connection with theenforcement, or intended enforcement, of any provision of this Law or of any other written law relating to a serious offence.

Article 35Referral of Matters After Investigation and Analysis

Immediately upon the completion of any investigation and analysis by the Anti-MoneyLaundering Intelligence Unit and a conclusion that there are reasonable grounds tobelieve that there has been a breach of Parts II, III, or IV of this Law or of any seriousoffence it shall notify the enforcement agency and provide a full report of its findings andcopies of documents obtained by it in the course of its investigations, if any. Uponreceipt of such report and materials the enforcement agency shall determine where thematter shall be formally investigated for the purposes of prosecution.[After an investigation is concluded and a breach is believed to have been madeof the Law, the matter is to be given to the enforcement agency who will decidewhether to formally investigate.]


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PART VI Article 36

FREEZING AND FORFEITURE OF ASSETS INRELATION TO MONEY LAUNDERING

FREEZING OF PROPERTY

(1) Where a person (hereinafter referred to as the defendant) has been charged or

is about to be charged with a money laundering offence, the Public Prosecutor maymake an application to a Judge in accordance with paragraph(2) for an order (hereinafter referred to as a freezing order) freezing the property of, or in thepossession or under the control of that person, which is alleged to be the proceeds of crime or money laundering, wherever such property may be.[This prevents a person charged or about to be charged from dealing with their

property which may be traced back to being the proceeds of crime or money laundering. A power could be given to freeze property after convictions as well.] (2) An application made under paragraph (1) may be made in the absence or anyother parties to a Judge in closed court and shall be accompanied by an affidavit swornon the information and belief of the Public Prosecutor or any other person deposing to

the following matters, namely-[No other party than the Prosecutor shall be permitted to present before the

judges. That is, it is not public and is to be heard in private.]

(a) The offence or matter under investigation; (b) The person who is believed to be in possession of the property; (c) The grounds for the belief that a freezing order may be made under this

Law; and (d) A description of the property.[Items (a), (b), (c) and (d) must be in a sworn statement to the court. It is not to be released to the public.]

(3) Where an application for a freezing order is made under paragraph (1), theJudge may make an order [These are the powers of the judge.]


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(a) Prohibiting any person from disposing of, or otherwise dealing with anyinterest in, the property specified in the order otherwise than in suchmanner as may be specified in the order; and

(b) At the request of the Public Prosecutor where the Judge is of the opinionthat the circumstances so require-

(i) appointing a person to take control of and to manage or otherwise

deal with all or part of that property in accordance with directionsof the Judge; and

[ A business may continue to run with a court-appointed manager.] (ii) requiring any person having possession of that property to give

possession of the property to the person appointed under subparagraph (i).

[A person may be ordered to deliver up property even though hemay just be in possession of it and not claim ownership.]

(4) The Judge in making any order freezing the property of the defendant may, givedirections as to-[These are additional powers for the judge.]

(a) The period of effect of the freezing order; or (b) The disposal of the property for the purpose of -

(i) determining any dispute as to the ownership of or other interest inthe property or any part thereof;

(ii) its proper administration during the period of freezing; (iii) the payment of debts incurred in good faith due to creditors prior

to the making of the order; (iv) the payment of moneys to the defendant for his reasonable

subsistence and that of his family; (v) the payment of the reasonable business and legal expenses of the

defendant; and (vi) permitting the use of the property in order to enter into a

recognizance required of the defendant by a court. (5) For the purpose of determining the reasonableness of business and legalexpenses referred to in paragraph(4)(b)(v), a Judge may hold a hearing in a closedcourt.


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(6) An order made under the provisions of this Article shall provide for notice to begiven to persons affected by the order in such manner as the Judge directs or as may beprescribed by the Rules of Court. (7) An order made under the provisions of this Article shall cease to have effect atthe end of the period of seven days, following the hour the order was made, if the personagainst whom such order was made has not been charged with a money launderingoffence within that time.[The Orders made shall stop if a person has not been charged 7 days after theOrder is made.] (8) The Government, the Public Prosecutor, the Anti- Money Laundering IntelligenceUnit, the Bank of (insert country name) or any of their staff shall not be liable for anydamages or costs arising directly or indirectly from the making of a freezing order unlessit is proved that the application for the freezing of the property was not made in goodfaith.[As long as the Order was obtained properly, no damages shall be payable if the

person is not charged.] (9) Where the court makes an order for the administration of frozen property, theperson charged with the administration of the property shall not be liable for any loss or damage to the property or for the cost of proceedings taken to establish a claim to theproperty or to an interest in the property, 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 and control of the property.[An administrator of frozen property is not liable for damages unless negligent.] (10) Any person who knowingly acts in contravention of or fails to comply with theprovisions of an order made under this Article is, without prejudice to any other remedy

provided at law, guilty of an offence and any act so made shall be null and void andwithout effect of law.[If a person does not comply with the Orders, it is an offence and Article 8 will apply.]

ARTICLE 37Forfeiture of Property

(1) Upon application by the Public Prosecutor to a Judge, any property of or inpossession or under the control of any person who is convicted of a money launderingoffence and any property of that person the subject of a freezing order shall, unlessproved to the contrary, be deemed to be derived from money laundering, and forfeited

by the order of the court. [ If a person is convicted of money laundering, property frozen will be forfeited. This paragraph could be extended to include "and any property the subject of further orders for forfeiture as proceeds which had not been the subject of a freezing order". This would be inserted after the word "order" in the third line. This would expand the Article. One could also havereference to the forfeiture provisions in the Pena/Criminal Law, so as to includethem by reference.]


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(2) In determining whether or not any property is derived from money laundering thecourt will apply the standard of proof required in civil proceedings. (3) 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 interest in the property or any part thereof; and

(b) As to the disposal of the property. (4) Upon application to a Judge by a person against whom a forfeiture order hasbeen made under the provisions of this Article, the court may order that a sum deemedby the court to be the value of the property so ordered to be forfeited be paid by thatperson to the court and upon satisfactory payment of that sum by that person theproperty ordered to be forfeited shall be returned to him.[Rather than forfeiting the items, the value of the goods-items-could be paid instead-if a judge agrees.]

ARTICLE 38Property Tracking and Monitoring

(1) For the purpose of determining whether any property belongs to, is in the

possession or under the control of any person, the court may upon application by thePublic Prosecutor or the competent authority and if satisfied that there are reasonablegrounds for so doing, order -

(a) That any document relevant to -

(i) identifying, locating or quantifying property of that person;

(ii) identifying or locating any document necessary for the transfer of

property of that person, be delivered forthwith to the competentauthority; and

(b) That a financial institution immediately produces to the Public Prosecutor

or competent authority, as the case may be, all information obtained by the institutionabout any business transaction conducted by or for that person with the institution duringsuch period before or after the date of the order as the court directs.

(2) Upon being satisfied by the competent authority that any person is failing tocomply with, is delaying or is otherwise obstructing an order made in accordance withthe provisions of paragraph (1), the court may order that the Public Prosecutor or competent authority, as the case may be may enter any premises of that person, searchthe premises and remove any document, material or other thing therein for the purposesof executing such order. [ If there is obstruction, the Public Prosecutor or officers of the "competent authority" (defined in Article 3) can enter and take possession if acourt orders.]


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(3) Where a person produces or delivers a document pursuant to an order madeunder this Article, the production or delivery of the document or any information,document or thing obtained as a direct or indirect consequence of the production or delivery of the document, is not admissible against that person in any proceedings,except a proceeding for an offence of failing to comply with an order of a court.

ARTICLE 39Offences

(1) It is an offence for any person to falsify, conceal, destroy or otherwise dispose of,or cause or permit the falsification, concealment, destruction or disposal of anydocument or material which is or is likely to be relevant to the execution of any order made in accordance with the provisions of Article 38 (1). (2) It is an offence for a person who is the subject of an order made under Article38(1) to disclose the existence or operation of the order to any person except to anofficer of the law enforcement agency named in the order, an officer or agent of thefi

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