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Part IV · Protection, Preservation and Management of Proceeds of Crime

Section 90

Official English translation. The Sinhala text prevails. Open the official Sinhala text, official PDF on documents.gov.lk

Duties, functions, and powers of the Authority, any public authority or a Receiver in rela­ tion to protecting, preserving and managing a seized or frozen proceeds of crime

(1)

Where the Authority or any other public authority or a Receiver has been appointed by the High Court in relation to any seized or frozen property entrusted with the task of protecting, preserving and managing a seized or frozen proceeds of crime, the Authority, such other public authority or receiver may subject to the approval of the High

Court, take or cause to be taken any step that is reasonably necessary to protect, preserve and manage the property and the value thereof, and such measures may include the following:-

(a)

where necessary register the property;

(b)

to take necessary steps to ensure that the possession, use, and transactions relating to such property shall be in compliance with the law;

(c)

if necessary, ensure that the property is insured;

(d)

if the property has been used prior to its seizure or judicial freezing for a particular lawful financial activity or trade or commerce, continue to use and manage such property for such purpose, and in that regard take necessary steps as may be necessary to carry on such trade or business activity, incur necessary capital and recurrent expenditure, enter into contracts, employ agents, contract suitable persons with requisites expertise and skills that may be necessary for the carrying out of the relevant activity, and take any other necessary steps in that regard;

(e)

if the property is –

(i)

not claimed by any party;

(ii)

perishable;

(iii)

unsafe or hazardous;

(iv)

is subject to rapid waste, decay, rapidly depreciating or other forms of loss;

(v)

difficult to administer;

(vi)

in view of the nature of the property requisite expertise for its effective management or maintenance or enhancement of value is either unavailable or difficult to procure;

(vii)

the cost of protection, preservation, maintenance, storage and management as the case may be would far exceed the present value of the property, take necessary steps for its disposal or immediate realization of its value;

(f)

if due to the nature of the seized or frozen property its protection, preservation and management is impracticable, take steps to dispose of such property;

(g)

if the value of the property is volatile or transformative, take necessary steps for the preservation of its value or its disposal as the case may be, by, subjecting such property to any method of preservation or using such property for any lawful transaction;

(h)

if the property can be subject to financial, trade or commercial transactions which are likely to enhance its value or generate profit, cause the conduct of necessary lawful transactions for such purpose;

(i)

if the cost of the protection, storage, preservation or maintenance of the property is likely to exceed its value, dispose of it in such manner as the court may direct;

(j)

if the seized or frozen property consists, wholly or partly, of an ongoing lawful business, which may be either a sole-proprietorship, a partnership, an incorporated company, trust or any other business entity-

(i)

perform such functions which the proprietor, partners, board of Directors, Trustees or

Principal Executive Officers of such business may in the normal course of business perform;

(ii)

make any payments by means of cheques or otherwise for the purpose of managing the business, and matters connected thereto; and

(iii)

doing any other thing that is necessary or convenient for carrying on the business on a sound commercial basis;

(k)

if the property comprises of or includes shares or other securities of a company, exercise rights attached to such shares or securities which the person from whom such property was seized would have otherwise been entitled to perform;

(l)

if the property consists of a bank account or any other account maintained at a financial institution, perform such functions relating to such account and any other related or linked account in respect of which the person from whom such property was seized would have otherwise been entitled to perform;

(m)

making necessary statutory payments;

(n)

if the property is a fixed deposit or any other form of investment where interest is accrued or drawn, manage the said property for the purpose of achieving the best return on such investment, and in that regard issue necessary directions to any party holding such investment; and

(o)

if the property consists, wholly or partly, of an ongoing activity, which appears not to be related to a lawful business activity, manage such property for any lawful purposes for which such property has been used prior to the seizure or for any other purpose.

(2)

Notwithstanding the provisions of subsection (1), the Authority, other public authority, or a Receiver or a

Special Manager shall perform the afore-stated functions a without the prior approval of the High Court in circumstances where the delay involved in obtaining the approval is likely to result in-

(a)

a significant diminution in the value of the property;

(b)

defeat the objectives of protection, preservation and management of suspected proceeds of crime;

(c)

adversely affect legitimate finance, trade and commerce;

(d)

adversely affect the value of the property; or

(e)

pose a danger to public health and safety.

(3)

In situations referred to in subsection (2), the

Authority, other public authority or the Receiver or the

Special Manager as the case may be, shall upon taking necessary action, forthwith notify the High Court setting out the following:-

(a)

reasons for the disposal or sale of the property;

(b)

measures taken to protect, preserve and manage such property and lack of its efficacy; and

(c)

details relating to the realization of the value of the property.

Part V

Proceeds of Crime Management authority

Part VI

Forfeiture of Frozen Proceeds of Crime And Related Proceedings

Part VII

Civil Remedy For Victims Of Crime

Part VIII

Disposal Of Forfeited Proceeds Of Crime And The Utilization Of The Value Derived Thereof

Part IX

Victims Of Crime Reparation Trust Fund

Part X

International Cooperation

Part XI

Miscellaneous Provisions

Schedules