stolen asset recovery efforts in the philippines by atty. julia c. bacay-abad (march 16, 2012)
DESCRIPTION
Stolen Asset Recovery Efforts in the Philippines presented by Atty. Julia C. Bacay-Abad, Deputy Director Head, Legal Services Group, Anti-Money Laundering Council (AMLC) Secretariat, during the GOPAC-SEAPAC Philippine Chapter Workshop on Anti-Money Laundering and the United Nations Convention Against Corruption (UNCAC) held on March 16, 2012 at Traders Hotel, Manila.TRANSCRIPT
presented by JULIA C. BACAY-ABAD
Deputy Director Head, Legal Services Group
Anti-Money Laundering Council Secretariat
STOLEN ASSET RECOVERY EFFORTS IN THE PHILIPPINES
UN Convention against Corruption (UNCAC)
9 December 2003 – Philippines signed 8 November 2006 – Philippines ra<fied
Entry into Force: 14 December 2005
UNCAC Legal Architecture: • Preven<on -‐ establishment of an<-‐corrup<on bodies -‐ establishment of Financial Intelligence Units (FIUs)
• Criminaliza<on • Interna<onal Coopera<on • Asset Recovery
Asset Recovery under the UNCAC
-‐ The return of assets pursuant to Chapter 51 is a fundamental principle of UNCAC;
-‐ States par<es shall afford one another the widest measure of coopera<on and assistance in that regard.
UNCAC
Art. 31. Freezing, seizure and confisca<on “1. Each state party shall take, to the greatest
extent possible within its domes<c legal system, such measures as may be necessary to enable confisca<on of:
(a) Proceeds of crime derived from offenses established in accordance with UNCAC;
(b) Property, equipment or other instrumentali<es used in or des<ned for use in offences established in accordance with UNCAC
Art. 31, UNCAC…
“2. Each State Party shall take such measures as may be necessary to enable the iden<fica<on, tracing, freezing or seizure of any item referred to in par. 1 (Ar<cle 31) for the purpose of eventual confisca<on.”
Asset Recovery Statutes in the Philippines
Republic Act No. 1379 – Forfeiture of Unexplained Wealth of gov’t officials and employees
Republic Act No. 9160 – An<-‐Money Laundering Act of 2001, as amended
R.A. 1379 “An Act Declaring Forfeiture in Favor of the State
of Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor”
• Enacted on 18 June 1955
• Introduced the first civil forfeiture statute
• Office of the Ombudsman prosecutes
R.A. 9160
-‐ The “An<-‐Money Laundering Act (AMLA) of 2001”
-‐ took effect on 17 October 2001
R.A. 9160, as amended
5 March 2003 -‐ R.A. 9160 was amended by R.A. 9194
7 September 2003 -‐ Revised Implemen<ng Rules and Regula<ons (RIRRs) took effect.
Salient Features of R.A. 9160, as amended
• Criminalized money laundering in the Philippines
• Created the Philippines’ FIU (AMLC) • Introduced civil forfeiture without the necessity of convic<on or prosecu<on in a criminal case
Relevant Terms
Money Laundering – is a crime whereby the proceeds of an unlawful ac<vity as defined in the AMLA are transacted thereby making them appear to have originated from legi<mate sources (Sec. 4, AMLA, as amended)
Unlawful Activity under the AMLA--
-‐-‐ is any act or omission or a series or combina/on thereof involving or having direct rela/on to any of the following offenses: 1. Kidnapping for ransom 2. Drug trafficking and
other viola<ons of the Comprehensive
Dangerous Drugs Act of 2002
Unlawful activity… 3. Graf and Corrup<on under R.A. No. 3019, as amended 4. Plunder (R.A. 7080, as amended) 5. Robbery and Extor<on 6. Jueteng and Masiao (P.D. 1602) 7. Piracy (RPC & PD 532) 8. Qualified Thef under Art. 310, RPC
Unlawful activity… 9. Swindling under Art. 315, RPC
10. Smuggling under RA 455 & 1937
11. Viola<ons of the Electronic Commerce Act of 2000
12. Hijacking, destruc<ve arson and murder, including those perpetrated by terrorists against non-‐combatant persons and similar targets
Unlawful activity…
13. Fraudulent prac<ces and other viola<ons of the Securi<es Regula<on Code of 2000 (RA 8799)
14. Felonies or offenses of a similar nature that are punishable under the penal laws of other countries
Civil Forfeiture under the AMLA, as amended
Sec. 7. Crea<on of An<-‐Money Laundering Council. – x x x. The AMLC shall act unanimously in the discharge of its func<ons as defined hereunder:
x x x x x x x x x (3) to ins<tute civil forfeiture proceedings and all other remedial
proceedings through the Office of the Solicitor General; x x x x x x x x x
(6) to apply before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged to be proceeds of any unlawful ac<vity as defined in Sec<on 3(i) of the AMLA
Sec<on 12 of the AMLA, as amended
Sec. 12. Forfeiture Provisions. – (a) Civil Forfeiture. – When there is a covered transac<on report made, and the court has, in a pe<<on filed for the purpose ordered seizure of any monetary instrument or property, in whole or in part, directly or indirectly, related to said report, the Revised Rules of Court on civil forfeiture shall apply.
Supreme Court action
January 2005 -‐ upon the request of the An<-‐Money Laundering Council, the Supreme Court tasked the Commikee on the Revision of the Rules of Court chaired by Jus<ce Reynato S. Puno to draf the Rule of Procedure in Cases of Civil Forfeiture.
• 15 November 2005 -‐ the Supreme Court adopted the Rule prescribing the procedure in cases of civil forfeiture.
• A.M. No. 05-‐11-‐04-‐SC, otherwise known as “Rule
of Procedure in Cases of Civil Forfeiture, Asset Preserva/on, and Freezing of Monetary Instrument, Property, or Proceeds Represen/ng, Involving, or Rela/ng to an Unlawful Ac/vity or Money Laundering Offense under R.A. No. 9160, as Amended”
• 15 December 2005 -‐ effec/vity of the Rule,
following its publica/on in a newspaper of general circula/on.
Rule on Civil Forfeiture
2 Parts
1. Pe<<on for Civil Forfeiture 2. Pe<<on for Freeze Order
Definition
Civil forfeiture may be defined as the seizure and confisca<on of any monetary instrument or property, in whole or in part, directly or indirectly, involved in or related to an unlawful ac<vity under Sec<on 3(i) or a money laundering offense under Sec<on 4, Republic Act No. 9160, as amended.
Assets that may be forfeited
Any monetary instrument, property, or proceeds represen<ng, involving, or rela<ng to an unlawful ac<vity or a money laundering offense under R.A. 9160, as amended. (Sec. 1)
Petition for Civil Forfeiture
Sec. 2. Party to ins<tute proceedings. • Ac<on in the name of the Republic of the Philippines (RP)
• Represented by the An<-‐Money Laundering Council (AMLC)
• Through the Office of the Solicitor General (OSG)
Venue of Civil Forfeiture Sec. 3. A pe11on for civil forfeiture shall be filed:
i) in any RTC of the judicial region where the monetary instrument, property, or proceeds are located;
ii) if all or any por/on of the monetary instrument, property, or proceeds is located outside the Philippines, the pe//on may be filed in the RTC in Manila or of the judicial region where any por/on of the monetary instrument, property, etc. is located, at the op<on of the pe<<oner.
Provisional Remedies
Sec. 11. Ex-‐parte issuance of Provisional Asset Preserva<on Order (PAPO)
-‐ PAPO is issued upon determina<on of probable cause that the monetary instrument or property is related to an unlawful ac<vity; -‐ based on the allega<ons of the verified pe<<on; -‐ effec<ve immediately for 20 days (from date of service to respondents)
Provisional Asset Preservation Order (PAPO)
-‐ Court order forbidding any transac<on, withdrawal, deposit, transfer, removal, conversion, concealment or other disposi<on of the subject monetary instrument, property or proceeds
-‐ within the 20-‐day period of PAPO, summary hearing shall be conducted;
-‐ Respondent may show good cause why PAPO should be lifed;
-‐ Court may modify or lif PAPO; otherwise, shall issue APO.
Asset Preservation Order (APO)
Order of Trial
Pre-‐Trial (Mandatory)
Trial
Judgment (Order of Forfeiture)
(Appeal)
Important!
No prior criminal charge, pendency of, or convic<on for an unlawful ac<vity or money laundering offense is necessary for the commencement or the resolu<on of a pe<<on for civil forfeiture.
(Sec. 27)
Judgment
Sec. 32. The court shall render judgment within thirty (30) days from submission of the case for resolu<on.
-‐ Preponderance of evidence
Claims against forfeited assets
• Within 15 days from date of finality of order of forfeiture
• Any party who has not been impleaded nor intervened, claiming an interest in the property
• Shall file verified pe<<on for declara/on that the property legi/mately belongs to him
• Otherwise, order of forfeiture becomes executory
Petition for Freeze Order
Sec. 44. -‐ Verified pe<<on; in the name of RP, rep. by AMLC; thru OSG
-‐ Filed before the Court of Appeals
-‐ Ex parte
Action by the Court of Appeals
-‐ Within 24 hours afer filing;
-‐ Issue freeze order upon determina<on of probable cause, based on allega<ons of the pe<<on, that the property or proceeds are in any way related to an unlawful ac<vity.
Freeze order
• Effec<ve immediately for 20 days
• On mo<on by the AMLC, may be extended for a period not exceeding six (6) months
SC Ruling
M/Gen. Carlos Garcia vs. CA, G.R. No. 165800; 27 Nov. 2007
“Nothing in RA 9160 requires that a case for viola/on of an/-‐money laundering laws must be filed before the issuance of a freeze order. X x x. There are only two requisites under the law for the issuance of the freeze order: (1) the applica/on ex parte by the AMLC; and (2) the determina/on of probable cause by the CA.”
SC Ruling
Republic vs. Glasgow Credit & Collec<on Services, Inc., et al.
G.R. No. 170281; 18 Jan. 2008
“Forfeiture proceedings are ac/ons in rem. x x x. As an ac/on in rem, it is a proceeding against the thing itself instead of against the person. In ac/ons in rem or quasi in rem, jurisdic/on over the person of the defendant is not a prerequisite to conferring jurisdic/on on the court, provided that the court acquires jurisdic/on over the res. x x x.”
AMLC Sta<s<cs As of February 2012
Civil Forfeiture Cases
No. of Cases Amount Involved
Pending trial in court
41 P 1,241,209,029.93 (approx.)
Decided Cases • Proceeds turned over to the Na<onal Treasury • Claimed by Third-‐Par<es • For Execu<on
12
P 249,406,231.45 (P 109,428,008.46) (P 2,401,568.50) (P 137,576,654.49)
Corruption-related Civil Forfeiture Cases
Unlawful Ac<vity
Decided by RTC Amount Involved Pending Trial
Amount Involved
Plunder
1
P 89.76 M
2
P 408.26 M
Graf & Corrup<on
2
(1 pending MR; 1 pending appeal)
P 8.5 M
1
P 512,837.46
Challenges in Asset Recovery
-‐ Lack of Asset Management Regime in the Philippines
-‐ Adversarial proceedings in applica<on for bank inquiry