Non-prejudice to the rights of bona fide third parties in the enforcement of forfeiture orders

New Zealand

International War Crimes Tribunals Act 1995

Part 5
Forfeiture of proceeds of Tribunal offences

45 Third parties may apply for relief

(1) Where a forfeiture order against property is registered in ac-cordance with section 42, any person (other than a person convicted of an offence in respect of which the order was made) who claims an interest in any of the property to which the order relates may apply to the Court for an order under section 46.

(2) A person on whom notice of the hearing of the Tribunal held in connection with the making of the forfeiture order was served, or who appeared at the hearing, may not apply under subsection (1) except with the leave of the Court.

(3) The Court shall not grant leave under subsection (2) unless there are special reasons for doing so.

(4) Without limiting the generality of subsection (3), the Court may grant leave under subsection (2) if it is satisfied—

(a) that the applicant had good reason for failing to attend the hearing held by the Tribunal in connection with the making of the forfeiture order ; or
(b) that evidence proposed to be adduced by the applicant in connection with the application under subsection (1) was not reasonably available to the applicant at the time of that hearing.

(5) Subject to subsection (6), an application under subsection (1)shall be made before the expiry
of the period of 2 months be¬ginning on the date on which the forfeiture order is registered in the Court.

(6) The Court may grant a person leave to apply under subsection (1) outside the period referred to in subsection (5) if the Court is satisfied that the person's failure to apply within that period was not due to any neglect on the person's part.

(7) A person who makes an application under subsection (1) shall serve notice of the application on the Solicitor-General, who shall be a party to any proceedings on the application.

46 Court may grant relief to third party

(1) Where—

(a) a person applies to the Court under section 45 in respect of an interest in property ; and
(b) the Court is satisfied that the applicant's claim to that interest is valid,—
the Court shall, subject to subsection (2), make an order—
(c) declaring the nature, extent, and value of the applicant's interest in the property ; and
(d) either
(i) directing the Crown to transfer the interest to the applicant; or
(ii) declaring that there is payable by the Crown to the applicant an amount equal to the value of the interest declared by the Court.

(2) The Court may refuse to make an order under subsection (1) if it is satisfied that—

(a) the applicant was, in any respect, involved in the commission of the offence in respect of which the forfeiture order was made ; or
(b) if the applicant acquired the interest at the time of or after the commission of the offence, the applicant did not acquire the interest in the property in good faith and for value, without knowing or having reason to believe that the property was, at the time of the acquisition, tainted property,—
but nothing in this subsection shall be taken to require such a refusal.

Rome Statute

Article 109 Enforcement of fines and forfeiture measures

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.