Enforcement of forfeiture orders

Republic of Malta

Malta - Criminal Code 1854 (2014) EN

BOOK FIRST PENAL LAWS

PART I
OF PUNISHMENTS AND GENERAL RULES FOR THEIR APPLICATION, OF THE WILL AND AGE OF
THE OFFENDER, OF ATTEMPTED OFFENCE, OF ACCOMPLICES AND OF RECIDIVISTS

Title I
OF PUNISHMENTS AND GENERAL RULES FOR THEIR APPLICATION

Sub-title II
GENERAL PROVISIONS RESPECTING THE INFLICTION AND EXECUTION OF PUNISHMENTS

23. (1) The forfeiture of the corpus delicti, of the instruments used or intended to be used in the commission of any crime, and of anything obtained by such crime, is a consequence of the punishment for the crime as established by law, even though such forfeiture be not expressly stated in the law, unless some person who has not participated in the crime, has a claim to such property.

(2) In case of contraventions, such forfeiture shall only take place in cases in which it is expressly stated in the law.

(3) In the case of things the manufacture, use, carrying, keeping or sale whereof constitutes an offence, the forfeiture thereof may be ordered by the court even though there has not been a conviction and although such things do not belong to the accused.

(4) Notwithstanding the provisions of subarticles (1) to (3), where the Attorney General communicates to a magistrate a request by a foreign authority for the return of an article obtained by criminal means for purposes of restitution to its rightful owner, the court may after hearing the parties and if it deems it proper so to act after taking into consideration all the circumstances of the case, order that the forfeiture of any such article shall not take place and that the article shall be returned to the requesting foreign authority.

BOOK FIRST PENAL LAWS

PART I
OF PUNISHMENTS AND GENERAL RULES FOR THEIR APPLICATION, OF THE WILL AND AGE OF
THE OFFENDER, OF ATTEMPTED OFFENCE, OF ACCOMPLICES AND OF RECIDIVISTS

Title I
OF PUNISHMENTS AND GENERAL RULES FOR THEIR APPLICATION

Sub-title II
GENERAL PROVISIONS RESPECTING THE INFLICTION AND EXECUTION OF PUNISHMENTS

23B. (1) Without prejudice to the provisions of article 23 the court shall, in addition to any punishment to which the person convicted of a relevant offence may be sentenced and in addition to any penalty to which a body corporate may become liable under the provisions of article 121D, order the forfeiture in favour of the Government of the proceeds of the offence or of such property the value of which corresponds to the value of such proceeds whether such proceeds have been received by the person found guilty or by the body corporate referred to in the said article 121D.
(1A) Any property, whether in Malta or outside Malta, of or in the possession or under the control of any person convicted of a relevant offence or in the possession or under the control of a body corporate as may become liable under the provisions of article 121D shall, unless proved to the contrary, be deemed to be derived from the relevant offence and be liable to confiscation or forfeiture by the court.
(1B) The provisions of article 7 of the Act shall mutatis mutandis apply sohowever that any reference in that article to "article 3(3)" shall be construed as a reference to subarticle (1A) of this article and any reference in the said article 7 to "an offence under article 3" shall be construed as a reference to a relevant offence.

(2) Where the proceeds of the offence have been dissipated or for any other reason whatsoever it is not possible to identify and forfeit those proceeds or to order the forteiture of such property the value of which corresponds to the value of those proceeds the court shall sentence the person convicted or the body corporate, or the person convicted and the body corporate in solidum, as the case may be, to the payment of a fine (multa) which is the equivalent of the amount of the proceeds of the offence. The said fine may be recovered as a civil debt and the sentence of the Court shall constitute an executive title for all intents and purposes of the Code of Organization and Civil Procedure.

BOOK FIRST PENAL LAWS

PART I
OF PUNISHMENTS AND GENERAL RULES FOR THEIR APPLICATION, OF THE WILL AND AGE OF
THE OFFENDER, OF ATTEMPTED OFFENCE, OF ACCOMPLICES AND OF RECIDIVISTS

Title I
OF PUNISHMENTS AND GENERAL RULES FOR THEIR APPLICATION

Sub-title II
GENERAL PROVISIONS RESPECTING THE INFLICTION AND EXECUTION OF PUNISHMENTS

23C. (1) Where it is established that the value of the property of the person found guilty of a relevant offence is disproportionate to his lawful income and the court based on specific facts is fully convinced that the property in question has been derived from the criminal activity of that person, that property shall be liable to forfeiture.

(2) When a person has been found guilty of a relevant offence and in consequence thereof any moneys or other movable property or any immovable property is liable to forfeiture, the provisions of
Cap. 101. article 22(3A)(b) and (d) of the Dangerous Drugs Ordinance shall apply mutatis mutandis in the circumstances mentioned in those paragraphs.

23D. (1) Where the court makes any order as is mentioned in articles 23A to 23C, both articles inclusive, it shall order the Registrar to conduct inquiries to trace and ascertain the whereabouts of any moneys or other property, due or pertaining to or under the control of the person charged or accused or convicted, as the case may be:
Provided that for the purposes of this subarticle "property" and "proceeds" shall have the meaning assigned to them respectively by article 23B(3).
(2) Whosoever is required by the Registrar to provide information for the purpose of subarticle (1) shall comply with the demand within thirty days from the day of receipt of the demand by registered post.

BOOK SECOND
LAWS OF CRIMINAL PROCEDURE

PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED

Title III Of the Attorney General

435C. (1) Where the Attorney General receives a request made by a judicial, prosecuting or administrative authority of any place outside Malta or by an international court for the temporary seizure of all or any or the moneys or property, movable or immovable, of a person (hereinafter in this article referred to as "the accused") charged or accused in proceedings before the courts of that place or before the international court of a relevant offence, the Attorney General may apply to the Criminal Court for an order (hereinafter in this title referred to as a "freezing order") having the same effect as an order as is referred to in article 22A(1) of the Ordinance, and the provision of the said article 22A shall, subject to the provisions of subarticle (2), apply mutandis mutandis to that order.

(2) The provisions of article 24C(2) to (5) of the Ordinance shall apply to an order made under this article as if it were an order made under the said article 24C.

(3) Article 22B of the Ordinance shall also apply to any person who acts in contravention of a freezing order under this article.

BOOK SECOND
LAWS OF CRIMINAL PROCEDURE

PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED

Title III Of the Attorney General

435D. (1) A confiscation order made by a court outside Malta providing or purporting to provide for the confiscation or forfeiture of any property of or in the possession or under the control of any person convicted of a relevant offence shall be enforceable in Malta in accordance with the provisions of article 24D(2) to (11) of the Ordinance.

(2) For the purposes of this article "confiscation order" includes any judgement, decision, declaration, or other order made by a court whether of criminal or civil jurisdiction providing or purporting to provide for the confiscation or forfeiture of property as is described in subarticle (1).

(3) For the purposes of this article and of articles 435B and 435C:
"the Act" and "the Ordinances" shall have the same meaning assigned to them respectively by article 23A(1);
"relevant offence" means an offence consisting of any act or omission which if committed in these Islands, or in corresponding circumstances, would constitute an offence, other than a crime under the Ordinances or under the Act, liable to the punishment of imprisonment or of detention for a term of more than one year.

BOOK SECOND
LAWS OF CRIMINAL PROCEDURE

PART III OF MATTERS APPLICABLE TO ALL CRIMINAL TRIALS

Title IV OF PROPERTY BELONGING TO THE PERSON CHARGED OR ACCUSED OR TO OTHER PERSONS AND CONNECTED WITH CRIMINAL PROCEEDINGS

667. Any property connected with criminal proceedings shall, subject to the following provisions of this Title, be held by the registrar until the conclusion of such proceedings including any proceedings of appeal.


668. (1) All property connected with criminal proceedings shall be delivered by the court to the registrar and shall, subject to the following provisions of this Title, remain in the custody of the registrar except when required by the court for the hearing of such proceedings.

(2) The Minister responsible for justice may make regulations providing for the registration and preservation of any property connected with criminal proceedings and for the manner in which a record is to be kept of the movements of any such property.


669. (1) The registrar shall ensure that all property delivered to him is properly catalogued, stored and preserved and kept in a secure place to be determined by the registrar.

(2) For the purposes of this article, the registrar may, with the approval of the Minister responsible for justice, appoint other persons to hold property or classes of property on his behalf under such terms and conditions as the Minister may think fit provided that the names of such persons shall be published in the Gazette.

Rome Statute

Article 109 Enforcement of fines and forfeiture measures

1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.

2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.

3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.