“Ensuring crime does not pay by denying and depriving persons of acquired criminal assets.” As the young team at Malta’s Asset Recovery Bureau’s set off for their working day from their Floriana building, the marble inscription of the ARB’s Vision is a constant reminder of their principal daily objective.
This institution has only been set up for a mere three years, taking over a responsibility which had originally been in the hands of the Courts themselves, but already finds itself playing a major role as Malta steps up its efforts to combat financial crime, including money laundering and terrorist financing. A key element of this battle is to ensure that criminals are prohibited from enjoying the proceeds of their crime, thereby taking away a main motivation of criminal groups, while ensuring that the victims of crime and the economies from which the assets were taken do not suffer from the economic loss.
In this context, the ARB is responsible for freezing, confiscation and seizure of criminal assets. While it is ultimately the Court, following a request of the prosecution, to order that a freezing order is issued, it is up to the specialised personnel at the ARB to identify, in a timely manner, the assets together with the application of provisonal measures at early stages of criminal proceedings. It is then responsible for the final confiscation of the proceeds of crime upon conviction and to ensure that confiscated assets are used or disposed of in an adequate manner. Nonetheless, the recent introduction of non-conviction based confiscation under the Proceeds of Crime Act, allows for the recovery of property in cases where in the judgement of the AG, it is not appropriate to recover property through non-conviction based confiscation as part of a criminal prosecution in cases where the perpetrator absconds or is not in Malta, the perpetrator is dead or dies prior to the conclusion of the criminal proceedings.
For the past few months, the institution, which has been searching for a new Director, has been headed by Dr. Kenneth Camilleri, who has assumed this acting position with a strong will to take the Bureau to the next level. Camilleri speaks enthusiastically about the Bureau’s efforts to step up its contribution towards Malta’s AML framework.
Over the short timeframe of its existence, the ARB has had its work cut out, with its input increasingly in demand as fellow authorities upped their game against financial crime. The Bureau has also registered a significant increase in foreign requests sent and received – proof of the ever-growing transnational face of financial crime. Moreover, new legislation has placed responsibility on the ARB to initiate contact with similar institutions abroad to extend freezing and confiscation orders established in Malta. Different EU legislation ensures the availability of adequate frameworks to allow for cooperation and recognition of foreign freezing orders , thus enabling the repatriation of confiscated funds across EU borders. This operation assumes a more laborious process once third countries are involved.
Dr. Camilleri has stated that the amount of frozen property has increased over the last 2 years which will directly affect the amount of assets to be confiscated in the future. It is pertinant to understand that the ARB does not work in isolation during the process which leads to the final confiscation of the proceeds of crime. Moreover, Camilleri highlights the complexity of such a process.
“It is not a matter of simply seizing a criminal’s assets as soon as suspicions arise. The process is indeed very extensive. First, the FIAU carries out its intelligence gathering, passing on the relevant information to the Police force which then carries out the investigation and transforms intelligence into evidence. The prosecution presents the case to the Courts, which ultimately determines the confiscation of assets. Such decision may be appealed by either party and additionally Constitutional cases may also be filed. . This means that confiscation of assets, which generally comes at the very end of proceedings, is a detailed, laborious process which inevitably takes years”, he explains, reiterating that the Bureau has only been around for a few years.
However, the ARB has another important role. It is up to its officers to identify all the assets (both registered and unregistered) which belong to the accused. This role therefore puts the Bureau as a single, but vital cog in the whole process to effectively strip criminals of their undue gains. The ARB can also request the Court to declare that any property being held by third parties, actually belongs to the convicted person and therefore becomes subject to confiscation as well.
A spate of new and updated legislative measures has also granted better tools to the Bureau. Through the introduction of The Proceeds of Crime Act earlier this year, a more harmonised approach towards the confiscation regime has been introduced. This includes the introduction of non-conviction-based confiscation, in the cases where a suspected person has absconded or is not in Malta and where the perpetrator is dead or when the perpetrator dies prior to the conclusion of the criminal proceedings. The Act also establishes a new Civil Court (Asset Recovery Section) which gives further powers to the ARB.
Camilleri insists that with the new tools in place, the Bureau is strongly positioned to take forward its responsibilities. “Crime should not pay, we strive to bring justice to society”. For this to happen, the Bureau will be experiencing significant investment in human resources, and technology. It plans to strengthen its fledgling team to 45 officers in two years’ time.The ARB has also embarked on a project which involves the construction of a new storage facility ensuring the proper preservation of assets until they are confiscated in favour of the Government.
The challenges ahead are significant, but the Bureau is arming itself with the right tools to play a fundamental and effective role in Malta’s fight against financial crime.