Legislative Examples: Civil Law Countries

Pages:120-139

Page 120

Title I. Definitions 1

For the purposes of this law:

  1. "Funds" and "property" means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to or interest in such assets, including but not limited to bank credits, traveler's checks, bank checks, money orders, shares, securities, bonds, drafts, and letters of credit.2

  2. "State or government facility" means any permanent or temporary facility or conveyance that is used or occupied by representatives of a state, members of a government, the legislature or judiciary, or by officials or employees of a state or any other public authority or entity, or by employees or officials of an intergovernmental organization in connection with their official duties.3

  3. "Proceeds" means any funds derived from or obtained, directly or indirectly, through the commission of an offense set forth in Article I-2.4

  4. "Convention" means the International Convention for the Suppression of the Financing of Terrorism, opened for signature on January 10, 2000. Page 121

    Title II. Offenses

    Article II-1. Financing of Terrorism5

  5. Any person commits the offense of the financing of terrorism who by any means, directly or indirectly, [unlawfully and willfully],6 provides or collects funds, or tries to provide or collect funds [Option: , or provides or tries to provide financial or other services]7 with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

    (a) an act which constitutes an offense within the scope of and as defined in one of the treaties listed in the annex to the Convention on the suppression of the financing of terrorism, and to which [name of the country adopting the law] is a party;

    (b) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.

  6. Variant 1:8 [For an act to constitute an offense in the sense of paragraph 1, it shall not be necessary that the funds were actually used to carry out an offense referred to in paragraph 1, subparagraph (a) or (b).] Variant 2: [The offense exists independently of the eventual occurrence of an act referred to in paragraph 1, subparagraph (a) or (b)].

  7. Any person also commits an offense if that person:[9]

    (a) participates as an accomplice in an offense as set forth in paragraph 1 or 3 of this article; Page 122

    (b) organizes or directs others to commit an offense as set forth in paragraphs 1 or 3 of this article.

    (c) contributes to the commission of one or more offenses as set forth in paragraphs 1 or 3 of this article by a group of persons acting with a common purpose, when this contribution is made with full knowledge of the intention of the group to commit an offense as set forth in paragraph 1 of this article or when its aim is to facilitate the criminal activity of the group or to serve its purposes, and that activity or purpose involves the commission of an offense as set forth in paragraph 1 of this article;10

    Article II-2. Justifications Not Allowed

    No consideration of a political, philosophical, ideological, racial, ethnic, religious, or other similar nature may be taken into account in order to justify the commission of any of the aforementioned offenses.11

    Title III. Coercive Measures[12]

    Chapter 1. Punishment of Offenses

    Section 1. Penalties Applicable

    Article III-1. Financing of Terrorism

    The penalty of imprisonment of ... to ... and a fine of ... to ... is imposed on anyone who commits a terrorism financing offense.

    An attempt to commit a terrorism financing offense is punishable Option 1: [as if the offense had itself been committed] Option 2: [by a penalty reduced by a [fraction] in relation to the main penalty].

    Complicity in an offense, its organization, orders given and assistance provided for its commission are punishable as if the offense had itself been committed. Page 123

    Article III-2. Association or Conspiracy to Commit Terrorism Financing The same penalties apply to participation in an association or conspiracy to commit the offenses referred to in Article I-2.

    Article III-3. Penalties Applicable to Corporate Entities

    When a terrorism financing offense is committed by an agent or representative under their management or control, corporate entities, other than the state, are punished by a fine equal to [a multiple- for example, five times] the fine specified for natural persons, without prejudice to the conviction of the latter as perpetrators or accomplices of the offense.

    Corporate entities may additionally be:

    (a) banned permanently or for a maximum period of five years from directly or indirectly carrying on certain business activities;

    (b) ordered to close permanently or for a maximum period of five years their premises that were used for the commission of the offense;

    (c) dissolved if they were created for the purpose of committing the offense;

    (d) required to publicize the judgment in the press or any other audiovisual media.

    Article III-4. Aggravating Circumstances

    Variant (a): The penalty imposed under Articles II-1, II-2, and II-3 may be increased to imprisonment of ... to ... and a fine of ... to ...:

    Variant (b): The penalty imposed under Articles II-1, II-2, and II-3 may be increased by ... [one third or other proportion determined on the basis of the general penal system in force]:

    when the offense is perpetrated in the context of a criminal organization.

    Article III-5. Mitigating Circumstances

    The general system of mitigating circumstances provided in [...provisions of the criminal code on mitigating circumstances] is applicable to the offenses provided for under Article I-2.

    Section 2. Confiscation

    Article III-6. Confiscation

    In the event of a conviction for an offense referred to in Article I-2, an order is issued for confiscation of the funds and assets used or intended to be used Page 124 to commit the offense, the funds and assets that are the subject of the offense, as well as the proceeds of the offense.

    The confiscation order specifies the funds and assets concerned and contains the necessary details to identify and locate them.

    When the funds and assets to be confiscated cannot be produced, confiscation may be ordered for their value.

    Anyone who claims to have a right over the assets or funds that are the subject of a confiscation order may appeal to the jurisdiction that issued the order within one year of the date of that order.

    Article III-7. Nullity of Certain Instruments

    Any instrument executed free of charge or for a consideration inter vivos or mortis causa, the purpose of which is to safeguard property from confiscation measures as provided in this section, is void.

    In the case of the nullification of a contract involving payment, the buyer is reimbursed only for the amount actually paid.

    Article III-8. Disposal of Confiscated Property

    Confiscated funds accrue to the state, which may allocate them to a fund for combating organized crime or terrorism, or for compensating the victims of the offenses associated with terrorism, or their families. They remain encumbered, up to their value, by any rights in rem lawfully established in favor of third parties.

    In cases where confiscation is ordered under a judgment by default, the confiscated funds accrue to the state and are realized in accordance with the relevant procedures on the subject. However, if the court, ruling on an application to set aside such judgment, acquits the person prosecuted, it orders restitution of the value of the funds confiscated by the state, unless it is established that such property represents the proceeds of a crime or offense.

    Chapter 2. Freezing of Funds in Application of United Nations Security Council Resolutions

    Article III-9. Freezing of Funds

    The [Prime Minister, Minister of Finance, Minister of Foreign Affairs, Minister of Justice] may, by administrative decision, order the freezing of Page 125 funds and assets of individuals and organizations designated by the United Nations Security Council acting under Chapter VII of the United Nations Charter.13 This decision is published in the ... [name of the official journal].

    Article III-10. Procedure for Disputing Administrative Measures to Freeze Funds

    Any individual or organization whose funds have been frozen pursuant to Article II-9 and feels that they were included on the list as the result of an error may seek to have their name removed from the list by submitting an request to this effect within thirty days of the publication of the list to the minister who ordered the freezing, indicating all factors that could demonstrate the error. The minister's decision with respect to this request cannot be appealed.

    Chapter 3. On Freezing, Provisional Measures, and Seizure in Criminal Matters

    Article III-11. On Provisional Measures

    [...name of the judicial authority competent to order provisional measures] may, ex officio or at the request of the public prosecutor's office [Option: or a competent agency], order any provisional measures at state expense, including the freezing of funds and financial transactions involving assets, regardless of their nature, that can be seized or confiscated.

    The lifting of these measures can be ordered at any time at the request of the public prosecutor's office or, after notice from the latter, at the request of the competent agency or the owner.

    Article III-12. Seizure14

    [...name of competent judicial authorities and officials responsible for the detection and suppression of terrorism financing offenses] may seize assets associated with the offense that is the subject of...

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