SC OKs rules on asset preservation, forfeiture in money laundering cases

The Supreme Court (SC) has released the rules in the asset preservation, seizure and forfeiture in money laundering cases, which took effect on Monday.

Approved on March 23, the guidelines will apply to all criminal actions before any court involving crimes or offenses defined as  “unlawful activity” under the Anti-Money Laundering Act of 2001 (as amended).

Under the new rules, the prosecution may pursue asset forfeiture by an allegation in the criminal information that it will proceed against the subject of the crime or offense, proceeds or fruits of the crime of offense, or any property used as the means of committing a crime or offense.

The prosecution may amend a criminal information, with the court’s permission, if during trial, other property not subject of the original information is shown to be the subject of, the proceeds or fruits of, or the means used of committing the crime or offense charged.

According to the SC, an ex parte provisional asset preservation order issued by the court shall be effective immediately for a period of 20 days.

“When the property preserved is perishable or is disproportionately expensive to keep or store, it may be released from preservation upon deposit of an equivalent cash bond or sold in public auction, the proceeds  of which shall be deposited with the clerk of court to be disposed of according to the final judgment of the court,” the SC said.

“Real estate property ordered preserved shall not be physically seized  before a final order of forfeiture, nor shall its owners and occupants be  evicted or deprived of its use and enjoyment.”

Properties may be seized before or after the filing of a criminal information by virtue of a search warrant or warrantless arrest, and shall be disposed of following the Rules on Criminal Procedure.

The accessory penalty of asset forfeiture may be imposed upon a person convicted with finality of a crime or offense, which divests him or her of properties which are the subject, proceeds or fruits, or used as the  means of committing the crime or offense, in favor of the state without compensation. 

A summary hearing shall be conducted should the convicted person or registered owner or possessor oppose the order of the court for the forfeiture of his or her property. 

Prior to this development, there were no clear-cut rules regarding the forfeiture or preservation of property that is the subject, proceeds or fruits, or the means used to facilitate the commission of an unlawful activity or money laundering.

The SC also approved the Court of Appeals’ rules in cases of bank inquiry or examination of deposit and investment accounts relating to an unlawful activity or money laundering offense.

Under the rules, the Anti-Money Laundering Council (AMLC) may file an ex-parte application for bank inquiry before the CA when it has been established that there is probable cause that the deposits or investments involved, including related accounts, are in any way related to an unlawful activity or a money  laundering offense.

The application must contain the following details:

• account number, or any other specific description of the deposit or investment  accounts sought to be inquired into or examined, the owner or holder of  the deposit or investment accounts, the address of such owner or holder;
• name of the banking institution or non-bank financial institution where such account is maintained, and their location, if known;
• the ground relied upon for the grant of authority to inquire into or examine the deposits or investment account; and
• supporting evidence showing the existence of probable cause that the subject deposits of investment accounts are in any way related to an unlawful activity or a money  laundering offense under RA 9160.

The application shall be raffled immediately on the same day it is filed to a justice who is not on official leave.

All members of the CA division to which the assigned justice belongs shall resolve the application within 24 hours from its receipt.

A bank inquiry order issued by the CA shall be effective for 120 days and shall have the same effect as that of a freeze order.

The CA, upon motion of the AMLC and before the expiration of the 120-day period, may extend the effectivity of the bank inquiry order for a period not exceeding 120 days. — RSJ, GMA News