As the Asset Recovery office for the Maltese Islands, our primary objective is to develop and facilitate techniques used in the identification and tracing of assets which will lead to an increased number of confiscations. To this effect, the Asset Recovery Bureau looks forward to work with all registered Institutions in order to facilitate operational cooperation by investing in new techniques while adopting permissible simplification measures, and the exchange of best practices on the identification and tracing of criminal assets.
The identification, tracing, freezing, confiscation and recovery of assets is an effective way to tackle crime and prevent that its proceeds are re-invested in the licit economy and used for further criminal activities. From the European Union’s perspective, substantial efforts took place in this area, most notably by the establishment of Asset Recovery Officers across the EU Member States and mutual cooperation amongst these Asset Recovery Offices.
Legal Notice 180 of 2021 on the Mutual Recognition of Freezing Orders and Confiscation Orders Regulations 2021 designated the Asset Recovery Bureau as the competent issuing and executing authority in terms of EU Regulation 2018/1805 of the European Parliament and of the Council of the 14th of November 2018. The Regulation enables a swift execution of foreign or local freezing and confiscation orders between different Member States without cumbersome formalities.
The ability to confiscate assets depends directly on the ability to identify and trace them, to “follow the money”. And while the EU continues to support the establishment of national Asset Recovery Offices and the provision of the necessary powers and resources to these agencies, in Malta, the Asset Recovery Bureau Regulations were promulgated by Legal Notice 357 of 2015. They were made by the Minister responsible for Justice, by virtue of the powers conferred on him by article 700 of the Criminal Code. A number of the provisions contained in these Regulations were, in point of fact, brought into force by Subsidiary Legislation 9.23 on the 1st October 2017. This was done to enable the setting up of the necessary structures of the Asset Recovery Bureau (ARB) and to build its capacity to be able to start functioning. This stage was reached by mid-2018 and the other provisions of the Legal Notice 357 of 2015 were brought into force by the Minister responsible for Justice, on the 20th of August 2018, through LN283 and LN 284 of 2018. This would also mean that all new cases referred for Freezing and Confiscation, as from the 20th of August 2018, will be managed by the Asset Recovery Bureau.
The Proceeds of Crime Act, Chapter 621 of the Law of Malta was enacted on the 12th of March 2021. The legislation caters for the identification tracing, freezing and confiscation of proceeds of crime and for the setting up of the Asset Recovery Bureau as a body, independent of the Government.
The Proceeds of Crime Act vested new powers to the Asset Recovery Bureau which mainly revolve around the ability of the Asset Recovery Bureau to take action through Preventive Measures at different stages of a criminal investigation which include actions that can be taken during pre-arraignment, arraignment, judgement and post-judgement stages. Further innovative features that were introduced by the coming into force of the Proceeds of Crime Act also include amendments to the definition of property contributing directly or indirectly to proceeds of crime by giving the said definition a wider interpretation. Additionally, the definition of a relevant offence was also subject to change in the Act and is now regarded as any offence under any law, and not being an offence of an involuntary nature, liable to the punishment of imprisonment or detention for a maximum term of at least one year. Another feature in the Act which one must take notice of and is very muchevident is the fact that even if a confiscation order has been given by the relevant Court, the offender is still liable to pay any person for any damage caused by the offence.
Part II of the Proceeds of Crime Act lays out the functions and powers of the Asset Recovery Bureau whilst inherently part III established a new section of the Civil Court which is designated as the Civil Court (Asset Recovery Section). The Part at hand and Part V mainly prescribe the procedures of the Civil Court (Asset Recovery Section) and also governs any disputes relating to the determination of what property constitutes the proceeds of crime. Part VI of the Act also establishes the contemporary function of non-Conviction Based Confiscation which provides for the recovery of property subject to confiscation in situations where, in the judgement of the Attorney General, it is not appropriate to recover such property through non-conviction based confiscation as part of a criminal prosecution, in certain cases.