1 Le Moniteur Published DIRECTOR-GENERAL Monday and Thursday Official Journal of the Republic of Haiti Fritzner Beauzile 168 th Year #212 PORT-AU-PRINCE Thursday 14 November 2013 SUMMARY Summons to a special session of the legislature The law punishing money laundering and terrorist financing LIBERTY EQUALITY FRATERNITY REPUBLIC OF HAITI MESSAGE MICHEL JOSEPH MARTELLY PRESIDENT Considering articles 92-1, 92.2, 105, 106 and 107 of the Constitution; Whereas the second regular parliamentary session ended on the second Monday of September 2013; Whereas the urgency to pass certain laws and to ratify certain agreements, treaties and conventions is deemed relevant; The Legislature is hereby summoned to a special session on Friday 22 November This special session will be dedicated to the analysis and voting of the following laws: 1. Draft electoral law for which I seek the benefit of urgency at this time;
2 2 LE MONITOR # Thursday, November 14, Draft Law on the Political Parties; 3. Draft Law on the establishment, organization and functioning of the National Education Fund (FNE); 4. Draft Law on electronic commerce; 5. Draft Law on electronic exchanges. 6. Draft Law on electronic signatures adapting the information technology evidence law and expanding the powers of the National Telecommunications Council; 7. Draft Decree ratifying the agreement between the Kingdom of Spain and the Republic of Haiti on the reciprocal promotion and protection of investments; 8. Draft Decree ratifying the basic agreement of scientific and technical cooperation between the Government of the United Mexican States and the Government of the Republic of Haiti; 9. Agreement amending for the second time the Partnership Agreement between the members of the Group of African, Caribbean and Pacific States, on the one hand, and the European Community and its Member States, the other hand, signed in Cotonou on June 23, 2000, amended for the first time in Luxembourg on June 23, 2005, announced for signature in Ouagadougou on June 22, 2010 and in Brussels from July 1 to 31, 2010 and signed by Haiti on October 8, ACP/EU. 10. All other agreements, treaties and conventions deemed relevant. This special session will last until the objectives of this notice have been completed. Executed at the National Palace, in Port-au-Prince, November 13, 2013, 210 th year of independence. Signed Michel Joseph MARTELLY
3 3 LE MONITOR # Thursday, November 14, 2013 LIBERTY EQUALITY FRATERNITY REPUBLIC OF HAITI THE LEGISLATURE LAW SANCTIONING MONEY LAUNDERING AND THE FINANCING OF TERRORISM Considering the Constitution of the Republic; Considering the law of 27 August 1912 on extradition; Considering the law of 19 September 1953 amending the Law of 23 July 1934 on the governance of foundations; Considering the law of 19 July 1954 establishing the Deposits and Consignments Fund; Considering the law of 26 October 1961 amending the structure of the General Customs Administration for more efficient tax collection; Considering the Decree-law of 27 November 1969 standardizing the provisions of the 24 February 1919 Law on notaries; Considering the law of 17 August 1979 establishing the Bank of the Republic of Haiti; Considering the decree of 29 March 1979 that revised the Law of 6 May 1932 and the Decree of 21 January 1946 and which changed the regulations governing the practice of the legal profession; Considering the decree of 4 February 1980 sanctioning the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including international diplomatic personnel; Considering the decree of 20 March 1981 amending the Law of 13 July 1956 on the functioning of insurance companies; Considering the decree of October 26, 1983 sanctioning the Convention for the Suppression of Unlawful Seizure of Aircraft; Considering the decree of October 26, 1983 sanctioning the Convention for the Suppression of Unlawful Acts against the Security of Civil Aviation; Considering the law of 4 November 1983 constituting the Ministry of Social Affairs; Considering the decree of 30 March 1984 amending the Law constituting the Ministry of Justice;
4 4 LE MONITOR # Thursday, November 14, 2013 Considering the decree of October 18, 1984 sanctioning the International Convention against the Taking of Hostages; Considering the Decree of 27 March 1985 amending articles 9 and 17 of the law of 17 August 1970 establishing the Bank of the Republic of Haiti (BRH); Considering the decree of 16 March 1987 reorganizing the Ministry of Economy and Finance; Considering the decree of 17 August 1987 replacing the text of the decree of 10 November 1986 on the organization of the Ministry of Foreign Affairs; Considering the Decree of 29 September 1987 on the organization of the Central Tax Office; Considering the decree of 31 January 1989 specifying the conditions for the practice of the money changing profession; Considering the decree of 10 March 1989 establishing the organization and procedures of the Ministry of Planning and External Cooperation; Considering the decree of 9 June 1989 relating to those of 31 March 1980 and 27 March 1987 on borlette [small lottery]; Considering the decree of 6 July 1989 regulating the operation of transfer houses; Considering the decree of 14 September 1989 on non-governmental organizations providing development assistance; Considering the decree of 4 September 1990 ratifying the United Nations Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, adopted in Vienna on 19 December 1988; Considering the law of 27 August 1996 establishing the regulations for Customs Agents; Considering the decree of 19 December 2000 on the ratification of the Inter-American Convention against Corruption signed on 17 October 1997; Considering the law of 21 February 2001 concerning the laundering of assets derived from illicit drug trafficking and other serious crimes; Considering the law of 7 August 2001 on the control and suppression of illicit drugs; Considering the law of 26 June 2002 on the establishment, organization, control and monitoring of Savings and Credit Cooperatives (CEC), known as Credit Unions and of Federations of Savings and Credit Cooperatives; Considering the decree of 8 September 2004 creating an administrative body known as the Anti- Corruption Unit (ULCC); Considering the decree of 16 February 2005 ratifying the Inter-American Convention against Terrorism, adopted on 3 June 2002;
5 5 LE MONITOR # Thursday, November 14, 2013 Considering the decree of 12 October 2005 on the management of the environment and guidelines for citizens conduct for sustainable development; Considering the decree of 14 May 2007 concerning the ratification of the United Nations Convention against Corruption; Considering the law of 22 January 2009 on kidnapping, illegal restraint and taking of hostages; Considering the decree of 12 March 2009 on the ratification of the International Convention for the Suppression of Terrorism Financing; Considering the law of 14 May 2012 on the banks and other financial institutions; Considering Articles 97, 98, 101, 102, 103, 104, 105, 107, 137, 140 of the Penal Code; Considering Articles 895 and subsequent of the Civil Procedures Code; Considering Articles 230 and 231 of the decree of 13 March 1987 on the Customs Code; Whereas flows of money from illegal sources can damage the stability and reputation of the business and financial sector; Whereas terrorism constitutes a threat to national and international peace; Whereas the integrity, stability and confidence in the entire financial system could be seriously jeopardized by criminals or their associates, either to disguise the origin of criminal proceeds or to channel licit or illicit money for purposes of terrorism; Whereas money laundering, terrorism financing and links between related criminal activities can undermine the foundations of the national economy and threaten stability and national security; Whereas there is an urgent need for the Haitian government to combat threats to stability, security and national sovereignty by all means; Whereas to achieve this end, the State cannot defend itself effectively without the assistance of national institutions and without international cooperation; Whereas it is essential to consolidate the advances made and to take additional measures to more effectively combat money laundering and to criminalize the financing of terrorism; Senator Jocelerme Privert proposed and the Legislature passed the following Law:
6 6 LE MONITOR # Thursday, November 14, 2013 TITLE 1 PRINCIPLES CHAPTER 1 PURPOSE SCOPE Article 1.- This law focuses on the prevention and suppression of money laundering and terrorist financing. It establishes the set of measures to detect and deter money laundering and terrorist financing and to facilitate the investigation and prosecution of money laundering and terrorist financing offenses. Article 2.- The provisions of this law shall apply to: a) banks; b) insurance companies, insurance agents and brokers; c) institutions that issue or manage credit cards; d) savings and credit cooperatives; e) money change agents; f) transfer houses; g) Development finance companies Article 3.- To the extent that they are expressly stipulated, the provisions of this law shall also apply to the following persons or entities, in the exercise of their business or profession: a) casinos, lotteries, borlette keepers, gaming establishments; b) non-governmental organizations working in development c) vehicle dealers; d) dealers of precious metals and stones; e) those that carry out, supervise or advise on real estate transactions; f) law (notaries and lawyers) and accounting professionals: 1. when assisting their client in the planning or execution of transactions for the: i. purchase or sale of real estate or business entities; ii. management of funds, securities or other assets belonging to the client; iii. opening or management of bank accounts; iv. provision of the support necessary for the creation, management or administration of companies;
7 7 LE MONITOR # Thursday, November 14, 2013 v. creation, operation or management of entities or legal arrangements, and the buying and selling of business entities; 2. or when acting on behalf of their client as an intermediary in any financial or real estate transaction; g) service providers to trusts and companies when providing a head office, a business address or accommodation, an administrative or postal address to a partnership or any other legal entity or legal arrangement or when they act: 1. as agent for the formation of legal entities; 2. as manager or secretary of a corporation, partner in a partnership or holds a similar function for other types of legal entities; 3. as a shareholder acting on behalf of another person. CHAPTER 2 DEFINITIONS Article 4.- For the purposes of this law, the following definitions apply: 1) Terrorist act: i) an act which constitutes an offense within the framework of and under the definitions in the following treaties: the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, and the 1979 International Convention against the Taking of Hostages, as well as ii) iii) any act intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population or compel a government or an international organization to do or abstain from doing any act. any act intended to cause death or serious bodily injury to a person when the act, by its nature or context, is to intimidate a government or government agency to prevent enforcement against the trafficking of illicit drugs. 2) Goods: assets of any nature whether physical or non-physical, movable or immovable, tangible or intangible, and legal documents or instruments in any form whatsoever, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travelers checks, bank checks, money orders, shares, securities, bonds, drafts and letters of credit and any interest, dividends or other income on or value derived from or generated by such assets. 3) Forfeiture: the permanent deprivation of goods by sovereign order of the court of jurisdiction.
8 8 LE MONITOR # Thursday, November 14, ) Seizure: any preventative measures undertaken as part of an investigation or a search. The seizure may be ordered by a judge or executed without a court decision by any jurisdictional authority in the exercise of its functions. Its purpose is to place all of the assets of the suspect in the justice system for a fixed term. The goods remain the property of the suspect; 5) Freezing: prohibition of the transfer, conversion, disposition or movement of funds or other securities with a cash value, based on a decision by a judicial authority or by ministerial order, for a specified period. The funds or other frozen securities remain the property of the person or persons with interest in them at the time of the freezing and they can continue to be administered by the financial institution. 6) Executive: all staff of an organization that constitute the senior managers from the General Manager to the president. 7) Serious offense: conduct constituting an offense punishable by a minimum of three (3) years in prison. 8) Predicate offense: any offense that generates a product from criminal activity. 9) Financial institution: any legal entity corresponding to those set out in Article 2. 10) Non-financial businesses and professions: any individual or legal entity corresponding to those set out in Article 3. 11) Non-Profit Organizations: any association, foundation or non-governmental organization incorporated under the laws of Haiti or authorized to operate in Haiti. 12) Terrorist organization: any terrorist group that: i) commits or attempts to commit terrorist acts by any means, directly or indirectly, unlawfully and willfully; ii) participates as an accomplice in terrorist acts; iii) organizes terrorist acts or incites others to commit them; or iv) contributes to the commission of terrorist acts by a group of persons acting with a common purpose, where the contribution is intentional and aimed at furthering the terrorist act or is made knowing the intention of the group to commit a terrorist act. 13) Politically Exposed Person: any person who holds or has held prominent public office in a foreign country or in Haiti or within or on behalf of an international organization, as well as the family members of this person or any other persons who are closely related to or associated with the person, subject to the constitutional provisions covering the actions of certain Haitian public officials. 14) Proceeds of criminal activity: means any goods directly or indirectly derived from the commission of an offense or obtained directly or indirectly by it;
9 9 LE MONITOR # Thursday, November 14, ) Terrorist: any individual who i) commits or attempts to commit terrorist acts by any means, directly or indirectly or unlawfully and willfully; ii) participates as an accomplice in terrorist acts; iii) organizes or incites others to commit terrorism; or iv) contributes to the commission of terrorist acts by a group of persons acting with a common purpose where the contribution is intentional and aimed at furthering the terrorist act or is made with knowledge of the group's intention to commit a terrorist act. 16) Electronic transfer: any transaction electronically performed on behalf of a payer whether an individual or legal entity through a financial institution to make a sum of money available to a beneficiary in another financial institution. TITLE II MONEY LAUNDERING AND TERRORISM FINANCING CHAPTER 1 MONEY LAUNDERING Article 5.- For the purposes of this law, the term money laundering means: a) the conversion or transfer of assets that are the proceeds of criminal activity for the purpose of concealing or disguising the illegal source of the assets or of helping anyone involved in such activity to evade the legal consequences of his actions; b) the concealment or disguise of the true nature, source, location, disposition, movement or ownership of assets or the rights thereto by any person who knows or should have known that these assets are the proceeds of criminal activity; c) the acquisition, possession or use of assets by any person who knows that such assets are the proceeds of criminal activity. Concerning the above, knowledge or intention may be deduced from objective factual circumstances.
10 10 LE MONITOR # Thursday, November 14, 2013 CHAPTER 2 TERRORISM FINANCING Article 6.- For the purposes of this law, financing of terrorism means any act committed by an individual or a legal entity that, by any means whatsoever, directly or indirectly, intentionally provided or assembled goods with the intention using them or knowing that they will be used, in whole or in part, either for: a) the commission of one or more acts of terrorism; b) the commission of one or more acts of terrorism by a terrorist organization; or c) the commission of one or more acts of terrorism by a terrorist or a group of terrorists. The commission of one or more of these acts constitutes an offense. Terrorist financing is a predicate crime to money laundering. An attempt to commit or aiding, inducing or assisting someone to commit or facilitating the implementation of terrorism financing is punishable as if the offense had been committed. The offense is committed if the action under this article occurs or not and whether the assets have been used to commit this action or not. The offense is also committed by any individual or legal entity that participates as an accomplice or organizes or incites others to commit these actions. Concerning the above, knowledge or intention may be deduced from objective factual circumstances. Article 7.- No consideration of political, philosophical, ideological, racial, ethnic, religious or any other grounds may be taken into account to justify the commission of any of the above offenses. Article 8.- For the purposes of this law, the origin of money or property is illegal when it is the product of an offense originating from: a) terrorism or terrorist financing; b) organized crime; c) illegal trafficking in narcotic drugs and psychotropic substances; d) illegal arms trafficking; e) illegal trafficking in stolen property and goods; f) trafficking illegal labor; g) the smuggling of migrants and trafficking in human beings; h) sexual exploitation, including that of children; i) smuggling; j) kidnapping, illegal restraint and hostage-taking; k) embezzlement of public funds by persons exercising a public function and corruption;
11 11 LE MONITOR # Thursday, November 14, 2013 l) counterfeiting currency or bank notes; m) counterfeiting goods or property titles. n) trafficking in human organs; o) the misuse or exploitation of minors; p) extortion; q) looting of the wealth of the people by anyone. Article 9.- The offenses referred to in articles 5 and 6 of this law shall apply to any person or legal entity and to any organization subject to litigation in Haiti, regardless of the place where the act was committed. CHAPTER 3 PREVENTION OF MONEY LAUNDERING AND TERRORISM FINANCING Section 1: General Provisions Article 10.- Any person who enters or leaves the territory of the Republic of Haiti will be required to make a declaration of cash at that time when the amount is equal to or greater than the amount established by ruling of the Bank of the Republic of Haiti (BRH) which it will submit to the customs office at the point of entry or exit of the country. This information is transmitted to the Central Financial Information Unit (UCREF) by the Customs Administration within five (5) days. The traveler cannot be held responsible for the unavailability of the form or the administrative structure responsible for its issue or collection. The Customs Administration seizes all unreported amounts of cash in cases of non-declaration or false declaration or if there is suspicion of money laundering or terrorist financing, pursuant to Articles 50 and subsequent of this law. The reporting obligation shall not be deemed to have been met if the information provided is incorrect or incomplete. Article 11.- Financial institutions and industrial and commercial enterprises as well as cultural, religious or humanitarian socio-professional organizations, whether national or international in scope, are required to report any active legal investigation to UCREF, following the means established by the law, all transactions in cash an amount equal to or greater than the prescribed amount as issued by the Bank of the Republic of Haiti (BRH), whether it is a single operation or in several operations which appear to be linked. The request for a declaration be made by the investigator and will be answered in writing, signed by an official of the institution with authority to engage it or a third party and a copy will be left with the institution to make it binding.
12 12 LE MONITOR # Thursday, November 14, 2013 Article 12.- The amounts referred to in Articles 10 and 13 and Articles 19, 27 and 31, paragraph b) may be modified through a ruling by the Bank of the Republic of Haiti. This change must be published in the Official Gazette of the Republic. Section 2: Preventive Measures and Due Diligence Obligations Article 13.- The persons referred to in Article 2 shall exercise constant vigilance on any business relationship and scrutinize transactions to ensure that they are consistent with what they know about their customers, their business, their risk profile and if necessary, the source of their funds. Having anonymous accounts or accounts in fictitious names is prohibited. The persons referred to in Articles 2 and 3 shall give special attention to business relationships and transactions with individuals or entities from countries that do not, or insufficiently apply international standards in the fight against money laundering and the financing of terrorism. Article 14.- The persons referred to in Article 2 shall take all necessary measures to prevent money laundering and the financing of terrorism when they maintain business relations with or perform operations for a client who is not physically present for purposes of identification. Article 15.- The persons referred to in Articles 2 are required to have adequate risk management systems to determine whether the customer is a politically exposed person and, if applicable: a) obtain approval from senior management before establishing a business relationship with the client; b) take all reasonable steps to identify the source of funds; and c) provide an enhanced and permanent surveillance of the relationship. The modalities of the application of this obligation are specified by regulation by the BRH or the concerned supervisory institution and breaches are punished pursuant to this law. Article 16.- Financial institutions must develop and implement programs for the prevention of money laundering and terrorist financing. These programs include: a) policies, procedures and internal controls, including compliance control measures, and proper procedures for employee hiring, to ensure that it is carried out according to strict criteria; b) the storing of information about the identity of customers, ordering parties, real beneficiaries, beneficiaries and proxy holders, agents, and suspicious transactions in one central place; c) the designation of compliance officers at the headquarters, at each branch and at each agency or office; d) on-going staff training to help them identify transactions and actions that may be related to money laundering and the financing of terrorism; and e) an internal control mechanism to verify compliance, adherence and effectiveness of the measures taken to apply this law.
13 13 LE MONITOR # Thursday, November 14, 2013 Non-financial businesses and professions must designate a compliance officer to be responsible for the implementation of this law within their organization. Article 17.- Financial institutions are required to identify their customers and verify information through documents, data sources or independent and reliable information for: a) the establishment of business relationships; b) the execution of occasional transactions, when the client wishes to make: 1. a transaction in an amount equal to or greater than the regulatory amount, whether in a single transaction or by means of several transactions that appear to be linked. The identification is also required even if the transaction amount is less than the threshold when the lawful origin of the funds is not certain; 2. a transfer of funds whether nationally or internationally; c) suspicions about the veracity or adequacy of the customer identification data previously obtained; d) suspicion of money laundering; and e) suspected terrorist financing. An identification must also be made when multiple cash transactions, both in national and foreign currency, exceed the total amount authorized and are carried out by and on behalf of the same person within one day or with an unusual frequency. These transactions are considered to be one transaction. Article 18.- The identification of a person comprises getting the full name, date and place of birth and address of the principal residence. Verifying the identity of a person requires the presentation of an original valid and official photograph document, of which a copy is made. Address verification is accomplished by the presentation of a document that can be verified. Identification of a legal entity involves gathering and verifying information on the name, address of the main office, the identity of directors and proof of its legal establishment. Article 19.- Where it is not certain that the client is acting for his own account, the financial institution shall seek the information on the identity of the real client by any means at its disposal. After verification, if doubt persists about the identity of the real client, the operation must be terminated, without nullifying the obligation to make a suspicious transaction declaration to UCREF. If the client is a lawyer, notary, accountant, a real estate broker, or is acting as a financial intermediary, he may not invoke professional privilege in order to refuse to disclose the identity of the real client. Article 20.- When a transaction is for an amount greater than or equal to the statutory amount and is carried out under conditions of unusual or unjustified complexity or appears to have no economic justification or lawful purpose, the financial institution is required to obtain information on the origin and destination of the funds as well as on the purpose of the transaction and the identity of the actors.
14 14 LE MONITOR # Thursday, November 14, 2013 The financial institution shall provide a written confidential report containing all relevant information on the terms of the transaction and the identity of the payer and, where appropriate, the economic operators involved. This report shall be stored under the conditions laid down in Article 23. Particular care must be taken with respect to operations originating from financial establishments or institutions that are not subject to sufficient customer identification and transaction monitoring obligations. Article 21.- Financial institutions whose activities include electronic transfers are required to obtain and verify the full name, account number and address or, in the absence of the address, the national identification number or the date and place of birth including, if necessary, the name of the financial institution of the person ordering the transfers. This information must be included in the message or payment form accompanying the transfer. If there is no account number, a unique reference number must accompany the transfer. These provisions do not apply to transfers executed by a credit or a debit card, if the number of the credit or debit card accompanies the transfer or to transfers between financial institutions when the ordering party and beneficiary are both financial institutions acting for their own account. Article 22.- If financial institutions receive wire transfers that do not contain complete information on the payer, they shall take measures to obtain the missing information from the issuing institution or the beneficiary in order to complete and verify the information. Should they not get this information, they can refuse to execute the transfer. Article 23.- The financial institutions shall maintain records on the identity of customers for at least five (5) years after the closing of accounts or the termination of the relationship with the customer. They shall also retain records on transactions carried out by customers, on customer due diligence information and the report listed in article 20 for at least five (5) years after completion of the transaction. Article 24.- For cross-border correspondent banking relationships, financial institutions are required to: a) identify and verify the identification of client institutions with which they maintain correspondent banking relationships; b) collect information on the nature of the client institution s activities; c) assess the reputation of the client institution and the degree of supervision to which it is subject, based on publicly available information; d) obtain approval from senior management before establishing a relationship with the correspondent bank; e) evaluate the money laundering and financing of terrorism controls implemented by the client institution; f) obtain approval from senior management before establishing new correspondent banking relationships.
15 15 LE MONITOR # Thursday, November 14, 2013 They are also responsible for ensuring that their foreign subsidiaries, if any, which conduct the same activities, develop and implement the principles and measures consistent with their obligations under this law. Establishing a correspondent banking relationship with a shell bank is forbidden. Article 25.- Insurance companies and insurance brokers and agents engaged in life insurance are required to identify their customers and verify their identity pursuant to article 18 if the premiums payable in a year are more than the amount fixed by the Ministry of Economy and Finance or any other organ or institution that it designates or if the payment is made in the form of a single premium in excess of the amount fixed by the Ministry of Economy and Finance or any other organ or institution that it designates, and for pension insurance contracts made through the employment or occupation of the insured, if such contracts contain a disclaimer clause and can be used as collateral for a loan. Article 26.- Based on a risk assessment, the Bank of the Republic of Haiti in collaboration with the UCREF may, by ruling, define the circumstances under which the obligations stated in article 18 may be reduced or simplified regarding the identification and the verification of the identity of the customer or real beneficiary. Section 3: Obligations of Nonprofit Organizations Article 27.- Any nonprofit organization, whether Haitian or foreign, that collects, receives, gives, or transfers funds through its philanthropic activity is subject to appropriate supervision by the relevant inspection authority. The relevant authority shall announce rules to ensure that the funds of nonprofit organizations are not used for money laundering or terrorist financing. Article 28.- Haitian or foreign nonprofit organizations are required to: a) produce reports at any time on: 1) the purpose and aims of their activities, and 2) the identity of the person or persons who own, control or manage their activities, including officers, members of the board of directors and the managers; b) annually publish their financial statements, including a breakdown of revenues and expenditures, in a widely circulated newspaper; c) develop mechanisms to help in the fight against money laundering and financing of terrorism; d) acquire control mechanisms to ensure that all funds are properly accounted for and used in compliance with the purpose and for their activities; and e) retain for at least five (5) years and make available to the authorities their records of domestic and international transactions that are sufficiently detailed to verify that funds have been well spent in compliance with the objectives and purpose of the organization.
16 16 LE MONITOR # Thursday, November 14, 2013 Section 4: Additional Obligations of Non-Financial Businesses and Professions Article 29.- Casinos and gaming establishments are required to: a) keep proper accounts and related documents for at least five (5) years, following international accounting principles, current legislation and the directives of the regulatory authority; b) ensure the identity, by means of an original, current photo identification, of which it makes a copy, of players who purchase, provide or exchange tokens or chips for an amount greater than or equal to the amount established by the Ministry of Economy and Finance or any other organ or institution that it designates for the task; c) record all transactions referred to in paragraph b of this article in chronological order in a register, including their nature and amount, and indicating the names of the players and the identification number of the document presented, and keep said register for at least five (5) years after the last recorded transaction; d) record, in chronological order, all transfers of funds between casinos and gambling clubs in a register and retain such records for at least five (5) years after the last recorded transaction. When the gaming establishment is run by a corporation with several subsidiaries, the chips must identify the subsidiary for which they are issued. In no case may chips issued by a subsidiary be refunded in another subsidiary, including one that is abroad. Article 30.- Those that carry out, supervise or advise on real estate transactions are required to identify the parties pursuant to article 18 when they are involved in transactions for the purchase or sale of real estate. CHAPTER 4 DETECTION OF MONEY LAUNDERING AND TERRORISM FINANCING Article 31.- Financial institutions and non-financial businesses and professions who suspect or have reasonable grounds to suspect that funds or assets are the proceeds of criminal activity or are related to or associated with money laundering or terrorist financing or are for these purposes are required to submit a suspicious transaction report promptly to UCREF. This requirement also applies to transactions that were rejected in accordance with article 19 of this law. Article 32.- UCREF shall establish by statute the procedures and the manner in which suspicious transaction reports and statements of cash transactions are transmitted. Article 33.- Financial institutions are required to provide themselves with information tools to systematically identify transactions involving an amount greater than or equal to the regulatory amount and to edit the automatic transactions reports corresponding to these operations.
17 17 LE MONITOR # Thursday, November 14, 2013 These institutions must report suspicious transactions to UCREF even if it was impossible to delay their execution or if the suspicion becomes apparent after the completion of the transaction. They are required to immediately report any information that might strengthen or diminish the suspicion. Article 34.- The financial institutions and non-financial businesses and professions can also notify UCREF by electronic communication, by fax or, failing that, by any written means, of an ongoing operation showing a strong indication of money laundering. Due to the seriousness or urgency of the matter, UCREF may stop the execution of the operation for a period not exceeding forty-eight (48) hours. At the expiration of this period, the UCREF may order the freezing of the operation, its accounts, securities or funds for an additional period of ten (10) days. If it was not able to identify any serious indications of wrongdoing, UCREF is required to lift the measure by written notice to the institution concerned. Article 35.- As soon as serious evidence emerges indicating money laundering or the financing of terrorism, UCREF shall transmit a report on the facts, together with its opinion, to the Government Commissioner for follow up. This report shall be accompanied by all relevant documents, with the exception of the Suspicious Transaction Reports themselves. The identity of the author of the report must not figure in the report. Article 36.- The information and documents referred to in Articles 11, 31 and 33 are provided, upon request, to the relevant judicial authorities; to officials responsible for the detection and punishment of offenses relating to money laundering and terrorist financing, based on a warrant; and to the UCREF and BRH, within the scope of their respective powers. The information and documents referred to above may not be disclosed to persons or entities other than those listed in paragraph 1, unless specifically authorized by these authorities. Article 37.- Financial institutions and non-financial businesses and professions, their directors, officers and employees may not disclose to any of their clients or third parties that information has been provided to UCREF or that a suspicious transaction report on money laundering or terrorist financing will be, is or has been sent to UCREF, or that an investigation of money laundering or terrorist financing has been or is underway.
18 18 LE MONITOR # Thursday, November 14, 2013 TITLE III INVESTIGATIONS AND PROFESSIONAL SECRETS CHAPTER 1 INVESTIGATIONS Article 38.- For the purpose of obtaining evidence of money laundering or terrorist financing in the course of an investigation and for a determined period, the judge hearing the case may order: a) the monitoring of bank accounts and other similar accounts; b) access to systems, networks and servers; c) the audio or video recording or photography of acts and behavior or conversations; and d) the interception and seizure of mail. These techniques can be used only where there is serious evidence that these accounts, telephone lines, computer systems and networks or documents are being or may be used by persons suspected of taking part in money laundering or terrorist financing. The judge's decision is determined by these criteria. Article 39.- Officials responsible for investigating money laundering and the financing of terrorism cannot be subject to sanction for acts committed in the exercise of their functions and in strict compliance with the laws. If it is proven that these techniques are used for political persecution or targeted espionnage, [d espionnage intéressé] the officials involved will be punished according to the laws protecting the privacy and rights of injured persons. The authorization of the magistrate hearing the case must be obtained prior to any transaction described in the preceding paragraph. Article 40.- The magistrate may, spontaneously or upon request of a witness or an injured private party, decide that: a) some identity data shall not be mentioned in the minutes of the hearing, if there is a reasonable presumption that these witnesses could suffer serious harm due to the disclosure of certain information; b) the identity of a witness shall remain secret if the relevant authority finds that the witness, a family member or an associate would likely be jeopardized by the testimony. The identity shall not be kept secret if the investigation of the offense requires it and if other investigative techniques seem insufficient to uncover the truth. The witness whose identity is kept secret may not be summoned to a hearing without his consent. Anonymous testimony cannot serve as the only basis for a charge, or as a determining factor of a charge;
19 19 LE MONITOR # Thursday, November 14, 2013 c) in cases where they perjure themselves, the identity of the witness will be made public and the penalties for perjury will be applied. CHAPTER 2 PROFESSIONAL SECRETS Article 41.- No prosecution for violation of professional secrecy may be brought against persons, officers, officials or employees of financial institutions or non-financial businesses and professions who, in good faith, provided information or suspicious transaction reports under article 31. The transmission of cash transaction reports executed pursuant to Articles 33 and 34 cannot in any way make the aforementioned persons liable. Article 42.- No civil action or criminal proceedings can be initiated or professional sanctions imposed against persons, officers, agents or employees of financial institutions or non-financial businesses and professions who, in good faith, have transmitted information or made declarations under articles 31 and 33, even when investigations or judicial decisions have not resulted in a conviction. Article 43.- No civil action or criminal proceedings may be brought against persons, officers, agents or employees of financial institutions or non-financial businesses and professions for material or nonpecuniary damages that may result from the refusal to conduct a banking transaction under the provisions of article 34. Article 44.- When a suspicious transaction has been executed, except in cases of collusion with the author of the act, no criminal prosecution for money laundering or financing of terrorism can be brought against the financial institutions or non-financial businesses and professions, their officers, officials or employees, if the suspicious transaction report was made immediately, as provided by articles 31 and 32. The same applies when a person subject to this law enters into a transaction at the request of investigative services acting under the provisions of article 39. Article 45.- UCREF agents are bound by professional secrecy, subject to the penalties provided in section 323 of the Penal Code. However, this secrecy is not binding on the courts. When a UCREF agent writes a report, the Director General shall present it to the authorities concerned without revealing the author or authors thereof.
20 20 LE MONITOR # Thursday, November 14, 2013 Section 1: Freezing TITLE IV PREVENTIVE MEASURES CHAPTER 1 FREEZING AND SEIZURE Article 46.- The relevant investigating magistrate may impose preventive measures on funds and goods concerning the offense or offenses subject to the investigation. These measures are allowed in order to preserve the availability of such funds, assets and instruments that may be subject to confiscation. The lifting of these measures may be ordered at any time at the request of the Prosecution [Ministère public] or at the request of the appropriate authority or the owner of the money or property. Article 47.- The funds of terrorists, persons, entities or organizations that finance terrorism and terrorist organizations designated by the Security Council of the United Nations acting under Chapter VII of the UN Charter shall be frozen by ministerial decree. An order from the Cabinet, issued by the Ministries of Economy and Finance, Justice and Public Security and of Planning and External Cooperation, defines the conditions and the duration applicable to the freezing and is published in the official gazette. Financial institutions and any other person or entity holding such funds shall freeze them immediately upon notification of the Ministerial Order and until it is rescinded by the United Nations Security Council or by another order of the Minister of Justice and Public Security. Financial institutions and persons or entities shall immediately advise UCREF of the existence of funds linked to terrorists, terrorist organizations or associated individuals or entities or funds belonging to such persons or organizations, according to the list established by the Council UN Security. Article 48.- It is prohibited to directly or indirectly make funds that are in process of being frozen available to one or more individuals or companies or entities or bodies designated by the ministerial order referred to in article 47 or to use them for their benefit. It is prohibited for financial institutions to provide or continue to provide services to such persons, entities or organizations. It is prohibited to knowingly and intentionally perform or participate in activities with the aim or effect of circumventing, directly or indirectly, the provisions of this article. Article 49.- Funds due under concluded contracts, agreements or obligations concluded or that arose prior to the freezing process shall be taken from the frozen accounts; accrued gains and interest on frozen funds shall be deposited in the same accounts.
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