Legislative Examples: Common Law Countries

• Pages: 140-154

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Arrangement of Sections¹

1. Definitions

2. Offenses

3. Liability of Legal Entities

4. Jurisdiction

5. Investigations

6. Rights of an Offender

7. Notification of Other States

8. Freezing of Funds

9. Forfeiture

10. Sharing of Forfeited Funds

11. Giving Effect to United Nations Security Council Resolutions

12. Extradition

13. Mutual Legal Assistance

14. Temporary Transfer

15. Alternative Remittance Systems

16. Refusal of Applications for Registration and Revocation of the Registration of Charities Linked to Terrorist Groups

Section 1. Definitions

In this Part:

(1) the term "funds" 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, travelers checks, bank checks, money orders, shares, securities, bonds, drafts, and letters of credit;

(2) the term "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 the judiciary, or by officials or employees of a state or any other public authority or entity or by Page 141 employees or officials of an intergovernmental organization in connection with their official duties;

(3) the term "proceeds" means any funds derived from or obtained, directly or indirectly, through the commission of an offense set forth in Section 2;

(4) the term "provides" includes giving, donating, and transmitting;

(5) the term "collects" includes raising and receiving;

(6) the term "treaty" means:

(a) the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on December 16, 1970;

(b) the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on September 23, 1971;

(c) the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973;

(d) the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979;

(e) the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on March 3, 1980;

(f) the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on February 24, 1988;

(g) the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988;

(h) the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on March 10, 1988; or

(i) the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997;

(7) the term "national of [country]" has the meaning given that term in [reference to the appropriate section of the nationality or citizenship act];

(8) the term "state" has the same meaning as that term has under international law, and includes all political subdivisions thereof; and Page 142

(9) the term "Court" means [name of the court charged with considering and issuing freezing and forfeiture orders].

Section 2. Offenses

(1) A person commits an offense under this section if that person, by any means, directly or indirectly, unlawfully and willfully provides or collects funds with the intention that such funds be used, or with the knowledge that such funds 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 a treaty specified in subsection (6) of Section 1, or

(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 to abstain from doing any act.

(2) A person commits an offense under this section if that person attempts or conspires to commit an offense under subsection (1).

(3) A person commits an offense under this section if that person-

(a) participates as an accomplice in an offense set forth in subsection (1) or (2);

(b) organizes or directs other to commits an offense as set forth in subsection (1) or (2);

(c) contributes to the commission of one or more of the offenses as set forth in subsection (1) or (2) by a group of persons acting with a common purpose, provided, however, that such contribution is intentional and-

(i) is made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offense set forth in subsection (1) or (2); or

(ii) is made in the knowledge of the intention of the group to commit an offense as set forth in subsection (1) or (2).

(4) A person commits an offense under this section if that person, directly or indirectly, makes available funds, financial assets or economic resources or financial or other related services-

(a) intending that they be used by, or knowing or having reasonable grounds to believe that they will be used, in whole or in part, for benefiting any person who is carrying out or facilitating, or is intending to carry out or facilitate, an offense set out in subsection (1) or (2); or

(b) knowing or having reasonable grounds to believe that, in whole or in part, they will be used by or benefit persons or entities carrying out or Page 143 facilitating, or intending to carry out or facilitate, an offense set out in subsection (1) or (2).²

(5) For an act to constitute an offense set forth in this section, it shall not be necessary that the funds or other resources were actually used to carry out an offense set forth in paragraph (a) or (b) of subsection (1).

Section 3. Liability of Legal Entities

Where an offense set forth in Section 2 is committed by a person responsible for the management or control of a legal entity located in [country] or organized under the laws of [country], that entity, in circumstances where the person committed the offense while acting in that capacity, is guilty of the offense, notwithstanding-

(a) any criminal liability that may have been incurred by an individual that was directly involved in the commission of the offense; or

(b) any civil or administrative sanction that may have been imposed by law on the entity.

Section 4. Jurisdiction

EXAMPLE ONE

Where a person is alleged to have committed an offense under Section 2, proceedings in respect of that offense may be commenced in [country], where the alleged offense-

(a) was committed by a national of [country];

(b) was committed on board a vessel flying the flag of [country];

(c) was committed on board an aircraft that-

(i) was operated by the government of [country]; or

(ii) was registered in [country];

(d) was directed toward or resulted in the carrying out of an offense under Section 2 in [country] or against a national of [country];

(e) was directed toward or resulted in the carrying out of an offense under Section 2 against a state or government facility of [country] outside [country], including diplomatic or consular premises of [country] ; Page 144

(f) was directed toward or resulted in the carrying out of an offense under Section 2 committed in an attempt to compel [country] to do or refrain from doing any act; or

(g) was committed by a stateless person who is ordinarily resident in [country].

EXAMPLE TWO³

(1) Any person who, outside [country], commits an offense referred to in...