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Property Seizure and Confiscation

Table of Contents

Introduction

  • All citizens have the right to property under the Constitution. 1
  • The authorities may seize or confiscate property and other assets in specific circumstances. 2
    • Seizure refers to the temporary taking of assets into custody, while confiscation refers to the permanent deprivation of assets (or the proceeds of such assets in the event of a sale).
  • In the event that property or other assets are taken by the authorities, all persons are entitled to due process in accordance with the law. 3
  • Where the police, court, or other authorities have seized or confiscated property, a person who wishes to reclaim this property should seek the assistance of a lawyer.
    • A lawyer can best advise a client on how to proceed based on the specific facts and circumstances, this may include:
      • Challenging evidence linking seized or confiscated property to an offence or the accused.
      • Challenging the legality of the arrest or the search that led to the seizure of property in the first place. 4

Seizure and confiscation of assets under the Criminal Procedure Code

  • Under the Code of Criminal Procedure, the authorities may seize property or other assets for many reasons:
    • A court may temporarily take assets, including property, into court custody as a condition of bail 5
      • The court may confiscate assets in the event the bond is forfeited. 6
    • A court may attach property to an arrest warrant in the event the accused has absconded. This is regardless of whether or not the assets were taken as a condition of bail. 7 See Attachment of property to a warrant
    • The police may seize any property suspected to be evidence in the commission of any offence, including, but not limited to, stolen goods. 8
      • At the conclusion of a trial, the court may order the confiscation of property (or its proceeds, in the event of a sale). See Confiscation of property used in the commission of a crime

Attachment of property to a warrant

  • Where an accused person has absconded from an arrest warrant, the court may decide to attach moveable or immovable property believed to belong to the accused to the arrest warrant. 9
    • If the proclaimed person in the arrest warrant appears within the time specified in the warrant, the court shall order the property to be released from the attachment. 10
      • Property may be returned if, within a two-year time period, a person is able to demonstrate to the satisfaction of the court that: 11
        • He or she did not hide from arrest for the purpose of avoiding execution of the warrant, and
        • He or she did not receive notice of the proclamation in order to enable him or her to attend within the time specified.
        • If the property has been sold, the net proceeds of the sale, or, if part only thereof has been sold, then net proceeds of the sale and the residue of the property, shall, after satisfying there out all costs incurred in consequence of the attachment, be returned or delivered.
  • If the property attached to the warrant belonged another person (other than the accused person/s), this person may file a claim or objection to the attachment of the property to the warrant. 12
    • The claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part. 13
    • The claim or objection must be made within six months from the date of such attachment. 14
    • Generally, such claim or objection can be made in court where order of attachment was issued. 15
    • if the claim is rejected in whole or in part, then the third party may institute a suit to establish claim to property in dispute, otherwise the order is conclusive. 16
      • This suit must be filed within one year from the date of the attachment order.
  • In generally, property under attachment shall not be sold until the expiration of six months from the date of the attachment. 17
    • If there is an objection, or claim to the property from a third party, then the court must resolve these claims before sale.

Confiscation of property used in the commission of a crime

  • At the conclusion of a criminal trial, the Court may order the confiscation of any property or document that which has been used (or appears to have been used) in the commission of any offence. 18
    • For this purpose, “property” refers to “not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.” 19
    • When an order for confiscation is made under this provision, such order shall not be carried out for either:
      • one month; or
      • when an appeal has been filed, until such appeal has been properly disposed of. 20
      • Exceptions include where the items are livestock or subject to speedy and natural decay.
    • A higher court overseeing an appeal, revision, or other relevant court filing may stay the order of confiscation by the lower court under this provision pending consideration of the lower court’s decision.
      • A higher court may modify, alter or annul such order or make any further orders. 21

Property seizure/confiscation under the 2014 Counter-Terrorism Law

  • Assets may be taken by the authorities in connection with “acts of terrorism” under the 2014 Counter-Terrorism Law. 22
    • “Acts of terrorism” include, but are not limited to:
      • Acts which “cause fear among the public… death or [serious injury] to a civilian or any other person not [participating at hostilities in the situation of armed conflict] with the [intent to force the authorities or other organisations to do an unlawful act].” 23
      • Acts to conceal or knowingly allow a “terrorist” or member of a “terrorist group” to take hide or escape from the authorities. 24
      • Acts that allow a “terrorist” or member of a “terrorist group” to use or hold meetings at a specific location, as well as other forms of support such as arranging transportation. 25
  • The Central Committee for Counter Terrorism (“Central Committee”) has the authority to declare a person as a “terrorist” and an organization/group as a “terrorist group.” 26
  • Prior permission from the Central Committee or the committee assigned by the Central Committee must be obtained when charging someone with an act of terrorism. 27
  • The Central Committee can issue an order to control the assets and funds owned by a declared terrorist or terrorist group. 28
  • Central Committee can issue (1) an injunction, 29  or (2) instruct the relevant authorities to intervene so that assets do not reach designated terrorist groups or otherwise control 30  such assets.
  • The presiding judge in a case involving charges under 2014 Counter-Terrorism Law can take property or other assets as part of evidence relating to acts of terrorism. 31
    • The court must issue an order to manage such evidence lawfully. 32
  • The presiding judge can issue an order to take assets obtained as evidence upon conviction for an act of terrorism/financing terrorism. 33
  • The law protects third parties who acted in good faith. 34
    • A person, who is not part of an investigation concerning assets in question in connection with act of terrorism or financing terrorism, may furnish “valid evidence” that they have received such assets after paying value in good faith. 35