Wednesday, November 9, 2011

Criminal Forfeiture and Confiscation Orders under Egyptyian legislations

Provisions of Forfeiture under Penal Code

Generally, forfeiture which is prescribed under the Egyptian Penal Code means that government owns things a property which represents proceeds from, instrumentalities used in and instrumentalities intended for use in the commission of predicate offences and property of corresponding value.

Law has classified the forfeiture as  a subordinated and complementary penalty, which may not be applied unless there is unlawful activity exists and proven by a court judgment, and the expression "complementary" means that forfeiture shall apply beside an original penalty ; e.g. according to AML Law, subject to imprisonment for a term not exceeding seven years and a fine equivalent to double of funds subject of the crime, each person who commits or attempts to commit the crime of money laundering set out in this Law. And in all cases, a confiscation of the seized funds shall be apply..; therefore, the application of the forfeiture as a complementary penalty is subject to the application of the original penalty. However, as exception of the aforesaid rule, forfeiture may apply as a measure required by the public order when it take place on things its possession is prohibited or things of a harmful or dangerous nature toward the community such as rotting foods and drinks, thus, application forfeiture in this case concentrate on the things itself not the person of owner thereof (whether guilty or not).  And whatever the situation, forfeiture may not be applied unless there is a provision stipulated by laws and a court judgment is issued in a crime specified by law.furthermore, Court of Cassation has ruled that "no forfeiture without seizure", 

Restraining Orders

As a Provisional measure, the court may, during hearing the case, or public prosecutor during the investigation process issue a restraint order to freeze the property of the suspect that may be realized in order to pay a confiscation order. A restraint order may be issued whenever the court is convinced that a confiscation order against the accused is most likely or otherwise a provisional procedure to prevent of losing rights, even before the prosecution is instituted.  As per the AML Law, provisional measures can be taken by the public prosecutor in accordance with the provisions of the Criminal Procedures Law, where AML law provides for the Money Laundry Combating Unit to inform the public prosecution of the indications revealed by investigation as to the commitment of any of the crimes stipulated in the AML Law.” Upon such request, the Public Prosecutor can take provisional measures pursuant to Articles 208 bis A, B and C of the Criminal Procedures Law. The provisional measures related to the search, freezing and seizing of assets that are suspected of being related to predicate crimes.

part of the Lexis Nexis online publication titled “Money Laundering, Asset Forfeiture and Recovery and Compliance”  authored by Mr. Islam Elmasry 

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