Deciphering the rule on asset preservation, seizure and forfeiture
(First of two parts)
“Money laundering is not a crime,” said Bitcoin.com chief operating officer Roger Ver. “It’s just because certain men with guns don’t like what other people are doing with their own money, so they decide it’s okay to lock those people in a cage.”
Take his observation as you will, but money laundering remains a crime under Philippine jurisdiction. It is penalized as a means for the government to ensure that our country shall not be used as a money laundering site for the proceeds of any unlawful activity, and pursuant to its foreign policy to cooperate in transnational investigations and prosecutions of persons involved in money laundering activities wherever committed.
Under Republic Act (R.A.) No. 9160, as amended, money laundering is committed when the proceeds of an unlawful activity are transacted, making them appear to have originated from legitimate sources. “Unlawful activity” refers to any act or omission or series or combination thereof involving certain offenses as defined under, among other laws, the Revised Penal Code, Dangerous Drugs Act, Anti-Graft and Corrupt Practices Act, R.A. No. 7080 or the law on plunder, Electronic Commerce Act, and Securities and Regulation Code.
Assets or proceeds derived from these unlawful activities may include any real or personal property, as well as any interest therein or any benefit, privilege, claim or right thereto. The proper court may order the forfeiture or seizure of these assets in the corresponding civil or criminal proceedings.
Recently, the Supreme Court issued Administrative Matter (A.M.) No. 21-03-13-SC, otherwise known as “The Rule on Asset Preservation, Seizure, and Forfeiture in Criminal Cases Under Republic Act No. 9160, as amended” (A.M. No. 21-03-13-SC).
Under this Rule, the prosecution may now seek in a criminal case the accessory penalty of asset forfeiture, which is imposed upon a person convicted with finality of a crime or offense, divesting him of his properties subject of the crime or offense, in favor of the State, without compensation, by alleging in the criminal information that it will proceed against the subject of the crime or offense, the proceeds or fruits of the crime or offense, or any property used as the means of committing a crime or offense.
Meanwhile, an information may be amended in accordance with Rule 110, Section 14 of the Revised Rules on Criminal Procedure if, during the trial, other property not subject of the original information is shown to be the subject of the crime or offense, the proceeds or fruits of the crime or offense, or used as the means of committing the crime or offense charged.
At any time after the filing of this criminal information or where it has not been filed, but properties have been seized by virtue of a search warrant or a warrantless arrest, the prosecution may file a verified motion for the issuance of an asset preservation order against a specific property. This order is sought to hold and conserve such property and forbid any transaction, withdrawal, deposit, transfer, removal, conversion concealment or other disposition thereof.
The proper court will issue an ex parte provisional asset preservation order upon finding that probable cause exists that the specific property alleged in the prosecution’s motion is the subject of the crime or offense, the proceeds or fruits of the crime or offense, or any property used as the means of committing the crime or offense charged.
This order shall be effective immediately and until 20 calendar days from notice to accused or his representative, or in whose name the property of accused is registered, and upon each covered person, which refers to the covered institutions defined under R.A. No. 9160, or government agency.
Within that 20-day period, the court shall schedule a hearing in which accused or his representative or the person possessing accused’s property, or in whose name the property of accused is registered, or the covered person or government agency may, for good cause, show why the provisional asset preservation order should be modified or lifted.
Thereafter, and within that same period, the court shall determine whether its order should be modified or lifted, or such order shall be issued, which shall be valid during the entire duration of the proceedings.
(To be continued)
