Criminal Justice (International Co-operation) (Enforcement of Overseas Forfeiture Orders) Order, 2002

Link to law: http://laws.bahamas.gov.bs/cms/images/LEGISLATION/SUBORDINATE/2002/2002-0061/CriminalJusticeInternationalCo-operationEnforcementofOverseasForfeitureOrdersOrder2002_1.pdf
Published: 2002-04-29

Criminal Justice (International Co-operation) (Enforcement of Overseas Forfeiture Orders) Order, 2002
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CHAPTER 105

CRIMINAL JUSTICE INTERNATIONAL
CO-OPERATION


CRIMINAL JUSTICE (INTERNATIONAL
CO-OPERATION) (ENFORCEMENT OF

OVERSEAS FORFEITURE ORDERS) ORDER, 2002
(SECTION 9)

[Commencement 29th April, 2002]
1. This Order may be cited as the Criminal Justice

(International Co-operation) (Enforcement of Overseas
Forfeiture Orders) Order, 2002.

2. (1) In this Order —
“appropriate authority of a designated country”

means —
(a) the authority specified opposite that

country in the Second Schedule; or
(b) where no authority is so specified, the

authority approved for the purposes of this
Order under paragraph 13;

“a court of a designated country” includes a court of
any state of a designated country;

“designated country” means a country designated
under paragraph 4;

“the Act” means the Criminal Justice (International
Co-operation) Act;

“police officer” includes a customs officer employed
in the Customs Department;

“property” includes money and all other property real
or personal, heritable or moveable, including
things in action and other intangible or
incorporeal property.

(2) This Order applies to property whether it is
situated in The Bahamas or elsewhere.

(3) Property is held by any person if he holds any
interest in it.

S.I. 61/2002
S.I. 9/2004
S.I. 76/2004

Citation.

Interpretation.


Second Schedule.

Ch. 105.

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(4) Proceedings are instituted in a designated
country when —

(a) under the law of the designated country
concerned one of the steps specified in relation
to that country in the right hand column of the
First Schedule has been taken there in respect of
an alleged drug trafficking offence or an offence
under the Proceeds of Crime Act; or

(b) an application has been made to a court in a
designated country for an external forfeiture
order;

and where the application of this subparagraph would
result in there being more than one time for the institution
of proceedings, they shall be taken to have been instituted
at the earliest of those times.

(5) Proceedings are concluded —
(a) when (disregarding any power of a court to grant

leave to appeal out of time) there is no further
possibility of a forfeiture order being made in
the proceedings;

(b) on the satisfaction of a forfeiture order made in
the proceedings (whether by the recovery of all
property liable to be recovered, or otherwise).

(6) An order is subject to appeal until (disregarding
any power of a court to grant leave to appeal out of time)
there is no further possibility of an appeal on which the
order could be varied or set aside.

3. (1) An order made by a court in a designated
country for the forfeiture and destruction or forfeiture and
other disposal, of anything in respect of which a drug
trafficking offence or an offence relating to the proceeds of
drug trafficking has been committed or any offence if
committed in the designated country would constitute an
offence under the Proceeds of Crime Act or anything
which was used in connection with the commission of such
an offence is referred to in this Order as an “external
forfeiture order”.

(2) In subparagraph (1), the reference to an order
includes any order, decree, direction or judgment, or any
part thereof, however described.

(3) A person against whom an external forfeiture
order has been made, or a person against whom
proceedings which may result in an external forfeiture

First Schedule.

Ch. 93.

External
forfeiture orders.

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order being made have been, or are to be, instituted in a
court in a designated country, is referred to as “the
defendant”.

4. Each of the countries and territories specified in
the Second Schedule is hereby designated for the purposes
of section 9 of the Act.

5. (1) The Supreme Court may in accordance with
this section by an order (referred to in this Order as a
“restraint order”) prohibit any person, subject to such
conditions and exceptions as may be specified in the Order,
from dealing with any property liable to forfeiture, that is
to say, any property in respect of which an external
forfeiture order has been made or in respect of which such
an order could be made in the proceedings referred to in
subparagraph (2) and (3).

(2) A restraint order may be made where —
(a) proceedings have been instituted against the

defendant in a designated country;
(b) the proceedings have not been concluded; and
(c) either an external forfeiture order has been made

in the proceedings or it appears to the Supreme
Court that there are reasonable grounds for
believing that such an order may be made in
them.

(3) A restraint order may also be made where —
(a) it appears to the Supreme Court that proceedings

are to be instituted against the defendant in a
designated country; and

(b) it appears to the Court that there are reasonable
grounds for believing that an external forfeiture
order may be made in them.

(4) Where the Court has made an order under
subparagraph (1) by virtue of subparagraph (3), the Court
shall discharge the order if the proposed proceedings are
instituted within such time as the Court considers
reasonable.

(5) A restraint order —
(a) may be made only on an application by or on

behalf of the government of a designated
country or, in a case where an external forfeiture
order has been registered under paragraph 10, by
the Attorney General;

Designation of
countries and
territories.
Second Schedule.

Restraint Orders.

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(b) may be made on an ex parte application to a
Judge in Chambers; and

(c) notwithstanding anything in rules of court, may
provide for service on, or the provision of notice
to, persons affected by the order in such manner
as the Supreme Court may direct.

(6) A restraint order —
(a) may be discharged or varied in relation to any

property; and
(b) shall be discharged when the proceedings in

relation to which the order was made are
concluded.

(7) An application for the discharge or variation of a
restraint order may be made by any person affected by it.

(8) Where the Supreme Court has made a restraint
order, the Court may at any time appoint a receiver —

(a) to take possession of any property specified in
the restraint order; and

(b) in accordance with the Court’s directions, to
manage or otherwise deal with any property in
respect of which he is appointed,

subject to such exceptions and conditions as may be
specified by the Court, and may require any person having
possession of property in respect of which a receiver is
appointed under this section to give possession of it to the
receiver.

(9) For the purpose of this section, dealing with
property held by any person includes (without prejudice to
the generality of the expression) removing the property
from The Bahamas.

(10) Where a restraint order has been made, a police
officer may for the purpose of preventing any property
specified in the restraint order being removed from The
Bahamas, seize the property.

(11) Property seized under subparagraph (10) shall be
dealt with in accordance with the directions of the Court
which made the order.

6. An application under paragraph 5(5) shall be
supported by an affidavit which shall —

(a) state, where applicable, the grounds for
believing that an external forfeiture order may

Application for
restraint orders.

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be made in the proceedings instituted or to be
instituted in the designated country concerned;

(b) to the best of the deponent’s ability, give
particulars of the property in respect of which
the order is sought and specify the person or
persons holding such property;

(c) in a case to which paragraph 5(3) applies,
indicate when it is intended that proceedings
should be instituted in the designated country
concerned;

and the affidavit may, unless the Court otherwise directs,
contain statements of information or belief with the sources
and grounds thereof.

7. (1) Where an external forfeiture order has been
registered in a Supreme Court under paragraph 10, the
Supreme Court may, on the application of the Attorney-
General, order the forfeiture of the property specified in the
external forfeiture order.

(2) The proceeds of any property forfeited under
subparagraph (1) shall be paid into the Confiscated Assets
Fund.

(3) The court shall not in respect of any property
exercise the powers conferred by subparagraphs (1) and (2)
unless a reasonable opportunity has been given for persons
holding any interest in the property to make representations
to the court.

8. (1) This paragraph applies to the power
conferred on the Supreme Court by paragraph 5 or on a
receiver appointed under paragraph 5.

(2) The powers shall be exercised with a view to
recovering property which is liable to be recovered under
an external forfeiture order registered in the Supreme Court
under paragraph 10 or, as the case may be, with a view to
recovering property which may become liable to be
recovered under any external forfeiture order which may
be made in the defendant’s case.

9. (1) Where a receiver appointed under paragraph
5 takes action —

(a) in relation to property which is not liable to
recovery under an external forfeiture order,
being action which he would be entitled to take
if it were such property;

Disposal of
forfeited
property.

Exercise of
powers by
Supreme Court
or receiver.

Receivers
supplementary
provisions.

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STATUTE LAW OF THE BAHAMAS LRO 1/2006

(b) believing, and having reasonable grounds for
believing, that he is entitled to take that action in
relation to that property,

he shall not be liable to any person in respect of any loss or
damage resulting from his action except in so far as the
loss or damage is caused by his negligence.

(2) Any amount due in respect of the remuneration
and expenses of a receiver so appointed shall be paid by
the person on whose application the receiver was
appointed.

10. (1) On an application made by or on behalf of
the government of a designated country, the Supreme
Court may register an external forfeiture order made there
if —

(a) it is satisfied that at the time of registration the
order is in force and not subject to appeal;

(b) it is satisfied, where the person against whom
the order is made did not appear in the
proceedings, that he received notice of the
proceedings in sufficient time to enable him to
defend them; and

(c) it is of the opinion that enforcing the order in
The Bahamas would not be contrary to the
interests of justice.

(2) In subsection (1) “appeal” includes —
(a) any proceedings by way of discharging or

setting aside a judgment; and
(b) an application for a new trial or a stay of

execution.
(3) The Supreme Court shall cancel the registration

of an external forfeiture order if it appears to the court that
the order has been satisfied by the forfeiture of the property
liable to be recovered under the external forfeiture order or
by any other means.

11. (1) For the purposes of this Order —
(a) any order made or judgment given by a court in

a designated country purporting to bear the seal
of that court, or to be signed by any person in
his capacity as a judge, magistrate or officer of
the court, shall be deemed without further proof
to have been duly sealed or, as the case may be,
to have been signed by that person; and

Registration
of external
forfeiture orders.

S.I. 9/2004.

Proof of orders
and judgement of
court in a
designated
country.

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(b) a document, duly authenticated, which purports
to be a copy of any order made or judgment
given by a court in a designated country shall be
deemed without further proof to be a true copy.

(2) A document purporting to be a copy of any
order made or judgment given by a court in a designated
country is duly authenticated for the purposes of sub-
paragraph (1)(b) if it purports to be certified by any person
in his capacity as a judge, magistrate or officer of the court
in question or by or on behalf of the appropriate authority
of the designated country.

12. (1) For the purposes of this Order, a certificate
purporting to be issued by or on behalf of the appropriate
authority of a designated country stating —

(a) that proceedings have been instituted and have
not been concluded, or that proceedings are to
be instituted, there;

(b) that an external forfeiture order is in force and is
not subject to appeal;

(c) that property recoverable in the designated
country under an external forfeiture order
remains un-recovered there;

(d) that any person has been notified of any
proceedings in accordance with the law of the
designated country; or

(e) that an order (however described) made by a
court of the designated country for the forfeiture
and destruction or the forfeiture and other
disposal of anything in respect of which a drug
trafficking offence or an offence under the
Proceeds of Crime Act, has been committed or
which was used in connection with the
commission of such an offence,

shall, in any proceedings in the Supreme Court or, as the
case may be, a magistrate’s court, be admissible as
evidence of the facts so stated.

(2) In any such proceedings a statement contained
in a document, duly authenticated, which purports to have
been received in evidence or to be a copy of a document so
received, or to set out or summarise evidence given in
proceedings in a court in a designated country, shall be
admissible as evidence of any fact stated therein.

Evidence in
relation to
proceedings and
orders in a
designated
country.

Ch. 93.

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(3) A document is duly authenticated for the
purposes of sub-paragraph (2) if it purports to be certified
by any person in his capacity as judge, magistrate or officer
of the court in the designated country, or by or on behalf of
the appropriate authority of the designated country, to have
been received in evidence or to be a copy of a document so
received, or, as the case may be, to be the original
document containing or summarizing the evidence or a true
copy of that document.

(4) Nothing in this section shall prejudice the
admission of any evidence, whether contained in any
document or otherwise, which is admissible apart from this
paragraph.

13. Where in relation to any designated country no
authority is specified in the Second Schedule, a certificate
made by the Governor-General to the effect that the
authority specified therein is the appropriate authority for
the purposes of this Order shall be sufficient evidence of
that fact.

14. A request for assistance sent to the Attorney-
General by the appropriate authority of a designated
country shall, unless the contrary is shown, be deemed to
constitute the authority of the government of that country
for the Attorney-General to act on its behalf in any
proceedings in the Supreme Court under paragraph 10 or
any other provision of this Order.


FIRST SCHEDULE (Paragraph 2(4))
INSTITUTION OF PROCEEDINGS



Certificate of
appropriate
authority.

Second
Schedule.

Representation of
government of a
designated
country.

Designated Country Point at which Proceedings are Instituted

Anguilla (a) when a summons or warrant is issued in
respect of an offence;

(b) when a person is charged with an offence
after being taken into custody without a
warrant;

(c) when a bill of indictment is preferred.

Argentina when a judge has ordered that a person be detained
for the purpose of testifying in connection with the
commission of an offence.

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Australia (a) when an information has been laid before a
justice of the peace;

(b) a person is charged with an offence after
having been taken into custody without a
warrant;

(c) when a bill of indictment is preferred.

Barbados (a) when an information has been laid before a
magistrate;

(b) when a person is charged with an offence;

(c) when a bill of indictment is preferred.

Bermuda when an information has been laid charging a
person with an offence.

British Virgin Islands (a) when a summons or warrant is issued in
respect of an offence;

(b) when a person is charged with an offence
after being taken into custody without a
warrant;

(c) when an indictment is preferred.

The Cayman Islands (a) when a charge has been signed under
subsection (3) or (4) of section 13 of the
Criminal Procedure Code in respect of the
offences;

(b) when a person is charged with the offence
after being arrested without a warrant under
subsection (5) of that section.

Ecuador when a writ is issued by a judge initiating criminal
proceedings.

Germany when a person is notified that he is accused of an
offence and will be brought before a court.

Gibraltar when a person is charged with an offence, whether
by the laying of an information or otherwise.



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Grenada (a) when an information has been laid before a
justice of the peace;

(b) when a person is charged with an offence;

(c) when a bill of indictment is preferred.

Guernsey when a person is charged with an offence.

Guyana when a charge has been laid against a person for an
offence.

(a) when a magistrate issues a warrant or
summons;

(b) when a person is charged with an offence;

Special Administrative
Region of Hong Kong

(c) when an indictment is preferred.

India (a) when information relating to the commission
of any crime is received by any law
enforcement agency empowered to investigate
such crime under the law for the time being in
force and laid before a court of law;

(b) when any allegation is made orally or in
writing to a court of law that a person has
committed an offence;

(c) when a person is charged with an offence;

(d) when any investigation or inquiry into the
commission of any offence is directed by a
court of law.

Isle of Man (a) where a justice of the peace issues a summons
under section 4 of the Summary Jurisdiction
Act 1989, when the complaint in relation to
the offence is made to him;

(b) where a justice of the peace issues a warrant
for the arrest of any person under that section,
when the complaint in relation to the offence
is made to him;

(c) where a person is charged with the offence
after being taken into custody without a
warrant, when he is taken into custody;



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(d) where an information is preferred by the
Attorney-General in a case where there have
been no committal proceedings, when the
information is lodged in the General Registry
in accordance with section 4(1) of the
Criminal Code Amendment Act 1917.

Italy (a) when a person is notified, in accordance with
Article 369 of the Italian Code of Criminal
Procedure, that a prosecution against him is in
progress;

(b) when a proposal for the application of a
preventative measure (“misura di
prevenzione”) is laid before a court.

Jersey (a) when the Bailiff issues a warrant in respect of
an offence for the arrest of a person which is
out of the Island;

(b) when a person is arrested and charged with an
offence;

(c) when a summons in respect of an offence is
served on a person at the instance of the
Attorney-General;

(d) when a summons in respect of the offence is
served on a person in accordance with the
provisions of Article 8 of the Police Court
(Miscellaneous Provisions) (Jersey) Law,
1949.

Malaysia when a person is charged with an offence.

Montserrat (a) when a judge issues a summons or warrant in
respect of an offence;

(b) when a person is charged with an offence
after being taken into custody without a
warrant.

Netherlands (a) when a pre-trial financial investigation has
been initiated;

(b) when the provisional measure has been
ordered by an investigating magistrate;





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(c) when a public prosecutor has requested a pre-

trial criminal investigation by an investigating
magistrate to be instituted;

(d) when a public prosecutor has laid an
indictment.

Panama when a person has been charged with an offence.

Paraguay when a judge has ordered the restraint of property
and a preventive detention order has been made.

Romania (a) when the start of a penal pursuit is ordered;

(b) when penal proceedings start in respect of an
offender.

Saudi Arabia when an information has been laid before a judicial
authority.

South Africa (a) when a summons is issued in respect of an
offence;

(b) when a person is charged with an offence;

(c) when a bill of indictment is preferred.

Spain when by virtue of a judicial resolution it is decided
to proceed against a person for an offence.

Sweden when a public prosecutor has established that there
are reasonable grounds to suspect that a person has
committed an offence and accordingly is obliged
under the Code of Judicial Procedure to notify the
person of the suspicion.

Switzerland when proceedings for an offence are brought before
an examining magistrate.

Thailand when a court or the Asset Examination Committee
issues a restraint order.

Turks & Caicos Islands (a) when a summons or warrant is issued in
respect of an offence;

(b) when a person is charged with an offence
after being taken into custody without a
warrant.



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Ukraine when a criminal case is brought.

United Kingdom when a summons or warrant is issued in respect of
an offence, or a person is charged after being taken
into custody without a warrant, or a bill of
indictment is preferred.

United Mexican States when criminal proceedings are instituted by a
judicial authority.

United States of
America

when an indictment, information or complaint has
been filed against a person in respect of an offence.

Uruguay when criminal proceedings are instituted by a
judicial authority.

SECOND SCHEDULE (Paragraph 4)

Designated Country Appropriate Authority

Afghanistan

Algeria

Anguilla the Attorney-General of Anguilla

Antigua and Barbuda

Argentina

Armenia

Australia

Austria

Azerbaijan

Bahrain

Bangladesh

Barbados

Belarus


S.I. 111/2008.
S.I. 72/2009.

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Belgium

Belize

Benin

Bermuda the Attorney-General of Bermuda

Bhutan

Bolivia

Boznia and
Herzegovina



Brazil

British Virgin Islands the Attorney-General of the British Virgin Islands

Brunei Darussalam

Bulgaria

Burkina Faso

Burundi

Cameroon

Canada

Cape Verde

The Cayman Islands the Attorney-General of the Cayman Islands

Chad

Chile

Colombia

Costa Rica

Croatia

Cuba

Cyprus

The Czech Republic

Denmark



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Dominica

Dominican Republic

Ecuador

Egypt

El Salvador

Ethiopia

Fiji

Finland

France

Gambia

Germany

Ghana

Gibraltar the Attorney-General of Gibraltar

Greece

Grenada

Guatemala

Guinea-Bissau

Guernsey Her Majesty’s Attorney-General for the Bailiwick of
Guernsey

Guyana

Haiti

Honduras

Special Administrative
Region of Hong Kong

the Attorney-General of Hong Kong

Isle of Man Her Majesty’s Attorney-General for the Isle of Man

Italy

Ivory Coast


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Jamaica

Japan

Jordan

Kenya

Kyrgyzstan

Latvia

Lesotho

Luxembourg

Macedonia

Madagascar

Malawi

Malaysia

Mali

Malta

Mauritania

Moldova

Monaco

Montserrat the Attorney-General of Montserrat

Myanmar

Morocco

Nepal

Netherlands

Nicaragua

Niger

Nigeria

Norway


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Oman

Pakistan

Panama
Paraguay
People’s Republic of
China

. S.I. 111/2008.

Peru
Poland
Portugal

Qatar

Republic of China S.I. 111/2008.

Romania

The Russian Federation

St. Christopher and
Nevis



St. Lucia
St. Vincent and the
Grenadines



Sao Tome and Principe
Saudi Arabia
Senegal
Seychelles
Sierra Leone
Slovakia
Slovenia
South Africa
Spain
Sri Lanka
Sudan
Suriname
Swaziland


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Sweden

S.I. 72/2009. Switzerland Examining Magistrate





Syrian Arab
Republic



Syria

Tajikistan

Thailand the Attorney-General or a person
designated by him



Togo

Tonga

Trinidad &
Tobago



Tunisia

Uganda

Ukraine

United Arab
Emirates



United Kingdom
of Great Britain
and Northern
Ireland



United Mexican
States



United Republic
of Tanzania



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United States of
America

Attorney-General or a person
designated by him

Amended by S.I. 76/2004.

Uruguay

Uzbekistan

Venezuela

Yemen

The Federal
Republic of
Yugoslavia,
Serbia and
Montenegro



Zambia

Zimbabwe
Read Entire Law on laws.bahamas.gov.bs