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Feb.14, 2010
The Explanatory Memorandum of Bill No 18 of 2007 is set out below.
“This Bill seeks to provide for the prevention of money laundering, combating the financing of terrorism and civil forfeiture of criminal assets.
“Part II of the Bill creates offences relating to money laundering.
“Clause 3 creates the offence of money laundering itself.
“The establishment and the functions of a Financial Intelligence Unit are provided for by Part III of the Bill. The Financial Intelligence Unit is established in the Ministry of Finance and consists of a Director who is the chief executive officer and also includes an attorney-at-law, an accountant and such other personnel trained in financial investigation and other employees as the Director considers necessary.
“Supervising of a financial institution in relation to money laundering and terrorist financing is provided for by Part III. The functions of the Financial Intelligence Unit include the powers to request, receive, analyze and assess reports of suspicious transactions and other information issued by reporting entities. The Financial Intelligence Unit will also compile a report and send it to the appropriate law enforcement authorities, if having conducted its analysis, the Financial Intelligence Unit has reasonable grounds to suspect that the transaction involves money laundering, proceeds of crime or terrorist financing. The Financial Intelligence Unit shall also compile statistics and records, disseminate information received, issue guidelines to reporting entities and advise the Minister accordingly or may conduct research into trends and developments in the area of money laundering and terrorist financing and improved ways of detecting, preventing and deterring money laundering and terrorist financing or may educate the public and create awareness on matters relating to money laundering or terrorist financing. “This Part sets out the obligations of financial institutions as they relate to money laundering, terrorist financing or proceeds of crime. It provides that reporting entities shall report all suspicious business transactions and sets out the role of a supervisory authority. The Governor of the Bank of Guyana, the Commissioner of Insurance, the Guyana Securities Council and a Special Assistance Committee appointed by the Minister responsible for Finance Shall be supervisory authorities for the purposes of this Act.
“Part IV provides for freezing and forfeiture of assets in relation to money laundering. It provides that the Director of Public Prosecutions may apply to the High Court for a restraining order against any realizable property held by the accused or specified realizable property held by a person other than the accused. This Part also provides that where, upon application by the Director of Public Prosecutions, if the Court that heard the criminal case is satisfied that property is tainted property in respect of a serious offence of which a person has been convicted, the Court may order that specified property be forfeited.
“Part V deals with measures to combat terrorist financing; it empowers a police or customs officer where he has reasonable grounds to suspect that any cash is intended to be used for the purposes of terrorism, or belongs to or is held in trust for a terrorist organization or represents property obtained through acts of terrorism, to seize the cash.
“This Part also provides that where the Director of Public Prosecutions has reasonable grounds to believe that any property is terrorist property or is held on behalf of a terrorist or terrorist organization, the Director o Public Prosecutions may make an application to the High Court to freeze any account or other property held by any person on behalf of or a terrorist organization. Where upon application by the Director of Public Prosecutions, the Court is satisfied, on a balance of probabilities, that property to which the application relates is terrorist property, the Court shall order that specified property be forfeited.
“Part VI deals with the treatment of requests for assistance by a competent authority of another country.
“Part VII deals with the civil forfeiture of criminal assets. Where it is shown to the satisfaction of the Court on the balance of probabilities upon application to it ex parte by an officer that a person is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime or the specified property that was acquired, in whole or in part, with or in connection with property that directly or indirectly, constitutes proceeds of crime and the value is not less than two million dollars, the Court may make an interim order prohibiting the person from disposing of or diminishing its value during the period of fifty-six days from the date of making the order. A Judge of the High Court is empowered to make a restraint order prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property, or diminishing its value, unless it is shown to the satisfaction of the Court or on evidence tendered by the respondent or any other person that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property, that directly or indirectly constitutes proceeds of crime or that the value of all the property to which the order would relate is less than two million dollars.
“This Part also provides that the Court, on application to it by the applicant, may make a civil forfeiture order directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to a receiver or to such other person as the Court may determine.
“Part VIII provides that money laundering and terrorist financing are offences for the purposes of the law relating to extradition or the rendition of fugitive offenders.
“This Part also provides that all moneys derived from the fulfillment of forfeiture and confiscation orders contemplated in the Act shall be paid into the Consolidated Fund.”