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Property rules

Deciphering the rule on asset preservation, seizure and forfeiture

Second of two parts

UNDER the Supreme Court’s 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), the Anti-Money Laundering Council shall or any of its deputized officers shall serve a copy of the provisional asset preservation order (PAPO) or asset preservation order (APO), as the case may be, on: (a) accused or his authorized representative; (b) the person in possession of accused’s property; or (c) the person in whose name accused’s property is registered. The PAPO or APO shall be enforceable anywhere in the Philippines.

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This copy shall likewise be furnished to the covered person, which refers to the relevant covered institutions defined under Republic Act (R.A.) No. 9160, as amended, or government agency. Thus, upon notice, it shall immediately preserve the property in accordance with the court’s order.

Accused or his authorized representative, the possessor, or the registrant of the concerned real or personal property, may seek its discharge from the scope of an APO by filing the proper motion, comment or opposition within five calendar days from receipt thereof. If the property belonged to a third party who was not charged with a crime or offense, he may file the same within 10 days from knowing that it is subject to a preservation order.

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Discharge from the APO may be raised on the grounds that: (a) it was improperly or irregularly issued or enforced; (b) any of the material allegations in the motion or any of the contents of any attachment thereof, or its verification, is false; (c) accused does not own the property; or (d) the specific personal or real property ordered preserved is not in any manner connected with the alleged unlawful activity as defined under Section 3 (i), R.A. No. 9160, as amended.

Moreover, the court may require the party seeking the discharge, whether accused or the third party not charged with the crime or offense, to post the corresponding bond. The amount of the bond shall be determined based on the unique circumstances of the case.

When real property is sought to be preserved, the preservation order shall be annotated on its certificate of title or any other public document evidencing ownership thereof. Moreover, this real property shall not be physically seized before a final order of final forfeiture, while its owners and occupants shall not be evicted therefrom or deprived of its use and enjoyment, pending the forfeiture proceedings.

Notice of the APO shall be served pursuant to Rule 13, Section 5, Rules of Civil Procedure, as amended, on accused or his authorized representative, the occupants of accused’s real property, or the person in whose name it is registered. Meanwhile, a copy of the APO shall be posted in a conspicuous place of the real property.

Upon verified motion by the prosecutor, the court may direct the transfer of the preserved real properties to an appointed receiver under such terms and conditions as it may deem proper when, among others: (a) it appears that they are in danger of being materially injured; (b) after judgment, it is necessary to preserve the properties during the pendency of an appeal, or to dispose of them according to the court’s judgment or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; or (c) it otherwise appears that the appointment of a receiver is the most convenient and feasible means of administering or disposing of the property in litigation.

Upon the acquittal of accused, and if so properly substantiated, the court shall include in its decision the lifting of any APO on his properties, and their release, pursuant to Title II, Section 12 (2) of A.M. No. 21-03-13-SC.

Meanwhile, should accused be convicted, and if so proved during his trial, the court shall include in its decision the forfeiture of his properties as the subject of the charged crime or offense, the proceeds or fruits thereof, or otherwise used as the means of committing the crime or offense.

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TAGS: asset preservation order (APO), Business, column, property, Property Rules
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