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Bahamas Numbered Acts |
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No. 25 of 2004 |
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AN ACT TO IMPLEMENT |
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THE UNITED NATIONS CONVENTION |
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RESPECTING THE SUPPRESSION OF |
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THE FINANCING OF TERRORISM, |
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THE UNITED NATIONS SECURITY COUNCIL |
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RESOLUTION 1373 |
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ON TERRORISM AND GENERALLY TO MAKE |
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PROVISION FOR PREVENTING AND |
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COMBATING TERRORISM |
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[Date of Assent - 31st December, 2004] |
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Enacted by the Parliament of The Bahamas. |
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1.
This Act may be cited as the
Anti-Terrorism Act, 2004.
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Short title. |
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2.
In this Act -
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Interpretation. |
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"Convention" means the International Convention for the Suppression of the Financing of Terrorism adopted by the General Assembly of the United Nations on 9th December, 1999; |
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"entity" means a person, group, trust, partnership, fund or an unincorporated association or organization; |
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"funds" means - |
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(a)
assets of every kind whether
tangible or intangible, movable or immovable, however acquired;
and
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(b)
legal documents or instruments
in any form; including electronic or digital, evidencing title to
or interest in such assets as bank
credits, travelers cheques, bank
cheques, money orders, shares, securities, bonds, drafts, or
letters of credit;
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"listed entity" means an entity in respect of which an Order under section 4 has been made; |
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"Minister" means the Minister responsible for National Security; |
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"state or government facility" means any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity or by employees or officials of an intergovernmental organization in connection with their official duties. |
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3.(1)
A person who in or outside The
Bahamas carries out;
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Offence of terrorism. First Schedule. |
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(a)
an act that constitutes an
offence under or defined in any of the treaties listed in the First
Schedule; or
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(b)
any other act -
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(i)
that has the purpose by its
nature or context, to intimidate the public or to compel a
government or an international organization
to do or to refrain
from doing any act; and
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(ii)
that is intended to cause
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(A)
death or serious bodily harm to
a civilian or in a situation of armed conflict, to any other person
not taking an active part in the
hostilities;
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(B)
serious risk to health or
safety of the public or any segment of the public;
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(C)
substantial property damage;
whether to public or private property, where the damage involves a
risk of the kind mentioned in sub-paragraph
(B) or an interference
or disruption of the kind mentioned in sub-paragraph (D); or
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(D)
serious interference with or
serious disruption of an essential service, facility or system,
whether public or private; not being
an interference or disruption
resulting from lawful advocacy or from protest, dissent or stoppage
of work,
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is guilty of the offence of terrorism and on conviction on information where death ensues and where that act would have constituted the offence of murder or treason, prior to the commencement of this act, shall be sentenced to death ; or in any other case, is liable to imprisonment for life. |
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(2)
A person who -
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(a)
aids, abets, counsels, procures,
incites or solicits the commission of an offence; or
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(b)
conspires with another or others
to commit an offence
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under subsection (1) is liable on conviction on information to be punished as a principal offender under that subsection. |
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4.(1)
The Attorney General shall
apply to a judge of the Supreme Court, in Chambers, for an order
under subsection (4) in respect of an
entity, if -
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Order in respect of listed entities. |
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(a)
the entity is included on a list
of entities designated as terrorist entities by the United Nations
Security Council; and
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(b)
the Attorney General has
reasonable grounds to believe that the entity -
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(i)
has knowingly committed or
participated in the commission of a terrorism offence; or
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(ii)
is knowingly acting on behalf
of, at the direction of, or in association with, an entity referred
to in paragraph (a).
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(2)
Before acting under subsection
(1), the Attorney General shall make such investigations as he
considers necessary.
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(3)
An application under
subsection (1), shall be -
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(a)
ex parte; and
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(b)
accompanied by an affidavit
deposing to the matters referred to in‑
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(i)
subsection (1) (a); and
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(ii)
subsection (1) (b) (i) or
(ii)
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(4)
Upon an application under
subsection (1), the Judge shall. by order, declare an entity to be
a listed entity for the purposes of this
Act if the Judge is
satisfied as to the matters referred to in -
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(i)
subsection (1) (a); and
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(ii)
subsection (1) (b) (i) or
(ii).
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(5)
Where an order is made under
subsection (4), (7) (d), or (10). the Attorney General shall,
within seven days after the date of the
order, cause to be
published in a daily newspaper in circulation in The Bahamas
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(a)
a copy of the order; and
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(b)
in the case of an order under
subsection (4) a statement that the matter will be reviewed every
six months.
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(6)
Within sixty days after the
date of publication of an order under subsection (5), the entity in
respect of which the order is made
may apply to a Judge of the
Supreme Court for a review of the order and shall notify the
Attorney General of the application.
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(7)
Upon an application made under
subsection (6), the Judge shall -
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(a)
hear any evidence or other
information that may be presented by the Attorney General and may,
at the request of the Attorney General
hear all or part of that
evidence or information in the absence of the applicant or any
counsel representing the applicant, if the
Judge is of the opinion
that the disclosure of the information would be prejudicial to
national security or endanger the safety of
any person;
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(b)
provide the applicant with a
statement summarizing the information available to the Judge, so as
to enable the applicant to be reasonably
informed of the reasons
for the making of the order, without disclosing any information the
disclosure of which would, in the opinion
of the Judge, be
prejudicial to national security or endanger the safety of any
person;
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(c)
provide the applicant with a
reasonable opportunity to be heard; and
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(d)
determine whether or not the
order should be revoked on the basis of the information available
to the Judge and, if he determines
that the order should be
revoked, make an order for such revocation.
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(8)
For the purposes of any
application or review under this section, the Judge may receive in
evidence anything that, in the opinion
of the Judge is reliable and
relevant, even if it would not otherwise be admissible evidence in
law.
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(9)
The Attorney General shall,
every six months -
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(a)
review all orders made under
subsection (4) so as to determine whether the circumstances
referred to in subsection (1) (a) or (b)
continue to exist in
respect of the listed entity; and
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(b)
if he determines that such
circumstances no longer exist, apply to a Judge of the Supreme
Court for the revocation of the order in
respect of the listed
entity.
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(10)
Upon an application under
paragraph (b) of subsection (9), the Judge shall, if satisfied as
to the matters referred to in that paragraph,
make an order for the
revocation.
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5.(1)
A person who in or outside The
Bahamas directly or indirectly, unlawfully and willfully;
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Providing or collecting. funds for criminal purposes. |
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(a)
provides or collects funds;
or
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(b)
provides financial services or
makes such services available to persons,
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with the intention that the funds or services are to be used or with the knowledge that the funds or services are to be used in full or in part in order to carry out - |
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(i)
an act that constitutes an
offence under or defined in any of the Treaties listed in the First
Schedule; or
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(ii)
any other act -
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a.
that has the purpose by its
nature or context, to intimidate the public or to compel a
government or an international organization
to do or to refrain
from doing any act; and
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b.
that is intended to cause
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(aa)
death or serious bodily harm
to a civilian or in a situation of armed conflict, to any person
not taking an active part in the hostilities;
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(bb)
the risk, damage, interference
or disruption of the kind mentioned in sub-paragraph (B), (C) or
(D) of section 3 (1) as the case may be
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is guilty of an offence and is liable on conviction on information to imprisonment for a term of 25 years. |
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(2)
For an act to constitute an
offence under subsection (1), it is not necessary to prove that the
funds or the financial services were
used to carry out the
offence.
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(3)
A person who -
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a. aids, abets, counsels, procures, incites or solicits the commission of an offence; |
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b. conspires with another or others to commit an offence under section (1) is liable on conviction on information to be punished as a principal offender under that subsection. |
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6.
Where an offence referred to
under section 3 or 5 is committed by a person responsible for the
management or control of an entity located or registered in The
Bahamas or in any
other way organized under the laws of The
Bahamas, that entity, in circumstances where the person committed
the offence while acting
in that capacity, is guilty of an offence
and is liable on conviction on information to a fine of $2,000,000
notwithstanding -
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Liability of a legal entity. |
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(a)
any criminal liability that may
have been incurred by an individual that was directly involved in
the commission of the offence; or
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(b)
any civil or administrative
sanction that may have been imposed by law.
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7.(1)
Where any person has
reasonable grounds to suspect that funds or financial services are
related to or are to be used to facilitate
an offence under this
Act, it shall be the duty of that person to report the matter to
the Commissioner of Police.
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Investigation. |
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(2)
Where information is received
from any source in or outside The Bahamas that a person who has
committed or who is alleged to have
committed an offence under this
Act may be present in The Bahamas, the Commissioner of Police shall
take such measures as may be
necessary to investigate the facts
contained in the information.
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(3)
Where on investigation it is
found that the person referred to in subsection (2) is in The
Bahamas, the Commissioner of Police shall
make a report to the
Attorney General who shall take such measures as are necessary to
prosecute the offender as the circumstances
warrant.
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(4)
Where any person, referred to
in subsection (1) fails to report as required under that
subsection, that person is guilty of an offence
and is liable on
conviction on information to a fine of $250,000 or to imprisonment
for a term of 5 years.
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8.
A person against whom measures
referred to in section 7(2) or 7(3) are taken is entitled to
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Rights of an offender. |
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(a)
communicate without delay with
the nearest appropriate representative of
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(i)
the State of which that person
is a national;
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(ii)
the State which is otherwise
entitled to protect that person's rights; or
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(iii)
where that person is a stateless
person, the State in which that person ordinarily resides;
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(b)
be visited by a representative of
the relevant States referred to in paragraph (a); and
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(c)
be informed of his rights
referred to in paragraphs (a) and (b).
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9.(1)
Subject to subsection (4), the
Court may where it is satisfied on the application by the
Attorney-General that -
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Freezing of funds. |
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(a)
a person has been charged or is
about to be charged with an offence under this Act;
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(b)
a person has been declared a
listed entity under this Act;
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(c)
a request has been made by the
appropriate authority of another State in accordance with section
17, in respect of a person‑
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(i)
who has been charged or is about
to be charged with an offence described in this Act; or
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(ii)
in respect of whom there is
reasonable suspicion that the person has committed an offence
referred to in sub-paragraph (i);
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make an order, in this Part referred to as a "freezing order", freezing the funds in the possession of or under the control of that person. |
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(2)
An application for a freezing
order under subsection (1), may be made ex parte and shall be in
writing and be accompanied by an affidavit
stating -
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(a)
where the person referred to in
subsection (1) has been charged, the offence for which he is
charged;
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(b)
the person has been declared a
listed entity under this Act;
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(c)
where the person has not been
charged, the grounds for -
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(i)
believing that the person
committed the offence; or
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(ii)
having a reasonable suspicion
that the person committed the offence;
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(d)
a description of the funds in
respect of which the freezing order is sought;
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(e)
the name and address of the
person who is believed to be in possession of the funds; and
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(f)
the grounds for believing that
the funds are related to or are used to facilitate an offence
referred to in subsection (1) and that
the funds are subject to the
effective control of the person.
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(3)
Where the Court makes an order
under subsection (1), the Court shall require that-
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(a)
the Order be published within
such time and manner as the Court directs;
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(b)
the applicant, within twenty-one
days of the making of the Order, serve notice of the Order together
with a copy of the Order on any
person whom, in the opinion of the
Court, appears to have an interest in the funds referred to in
subsection (2); and
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(c)
the person referred to in
paragraph (b) or any other person that appears to have interest in
the funds, be afforded an opportunity
to be heard by the Court
within such time as the Court determines,
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unless in respect of paragraph (b) the Court is of the opinion that giving such notice would result in the disappearance, dissipation or reduction in the value of the funds. |
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(4)
Where an application for a
freezing order made under subsection (1) is made as a result of a
request from another State, the Court
shall not make the order
unless it is satisfied that reciprocal arrangements exist between
The Bahamas and that other State whereby
that other State is
empowered to make a similar order in respect of a request for a
freezing order from The Bahamas.
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(5)
The Court may, in making an
order under subsection (1), give directions with regard to -
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(a)
the duration of the freezing
order; or
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(b)
the disposal of the funds for the
purpose of -
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(i)
determining any dispute relating
to the ownership of or other interest in the funds or any part
thereof;
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(ii)
its proper administration during
the period of the freezing order;
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(iii)
the payment of debts incurred in
good faith prior to the making of the order;
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(iv)
the payment of moneys to the
person referred to in subsection (1) for the reasonable subsistence
of that person and his family; or
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(v)
the payment of the costs of the
person referred to in subparagraph (iv) to defend criminal
proceedings against him.
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(6)
Notwithstanding subsection
(5), a freezing order made under this section shall cease to have
effect at the end of the period of six
months after the order was
made where the person against whom the order was made has not been
charged with an offence under this
Act within that period.
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(7)
An order made under subsection
(1) may be renewed for a period not exceeding six months in each
particular case but in no case shall
the entire period of the order
exceed eighteen months.
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(8)
A freezing order granted by
the Court under this section shall not prejudice the rights of any
third party acting in good faith.
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(9)
Where the Court makes an order
for the administration of frozen funds the person charged with the
administration of the funds is not
liable for any loss or damage to
the funds or for the costs of proceedings taken to establish a
claim to the funds or to an interest
in the funds unless the court
in which the claim is made is of the opinion that the person has
been guilty of negligence in respect
of the taking of custody and
control of the funds.
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10.(1)
Where a person is convicted of
an offence section 3 or 5, the Attorney General may apply to the
Court for a forfeiture order against the funds that are the subject
of the offence.
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Forfeiture Order. |
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(2)
The court may upon application
by the Attorney General, forfeit any funds of or in the possession
or under the control of any person
who is convicted of an offence
of terrorism or any funds of that person that are the subject of a
freezing order, unless it is proved
that the funds did not derive
from the commission by that person of an offence under section 3 or
5.
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(3)
For the purposes of subsection
(2) the burden of proof lies on the person who owns, or is in
possession or control of, the funds.
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(4)
In determining whether or not
any funds are derived from an offence under section 3 or 5, the
standard of proof required for the purposes
of subsection (2) is
the same as in criminal proceedings and for the purposes of
subsection (3) is the same as in civil proceedings.
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(5)
In making a forfeiture order
the Court may give directions -
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(a)
for the purposes of determining
any dispute as to the ownership of or other interest in the funds
or any part thereof; and
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(b)
as to the disposal of the
funds.
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(6)
Upon application to the Court
by a person against whom a forfeiture order has been made under
this section, the Court may order that
an amount deemed by the
Court to be the value of the funds so ordered to be forfeited, be
paid by that person to the Court and upon
satisfactory payment of
that sum by that person the funds ordered to be forfeited shall be
returned to him.
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11.(1)
The Government of The Bahamas
may, pursuant to any forfeiture agreement with any State, share
with that State on a reciprocal basis,
the funds derived from
forfeiture pursuant to this Act.
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Sharing of forfeited funds. |
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(2)
Funds referred to under
subsection (1) may be utilized by the Government of The Bahamas to
compensate victims of the offences referred
to under this
Act.
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12.(1)
Where a person who has
committed or is alleged to have committed an offence under this Act
is present in The Bahamas and it is not
intended to extradite that
person, the Attorney General shall prosecute the offender for the
offence.
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Extradition. |
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(2)
Notwithstanding the provisions
of this Act, no person shall be extradited pursuant to this Act,
where the Government of The Bahamas
has substantial grounds for
believing that a request for extradition for an offence under this
Act has been made for the purpose
of prosecuting or punishing a
person on account of that person's race, religion, nationality,
ethnic origin or political opinion
or that compliance with the
request would be prejudicial to that person's rank or status for
any of these reasons.
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13.
Where a person is alleged to
have committed an offence under this Act, proceedings in respect of
that offence may be commenced in
The Bahamas where the alleged
offence -
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Jurisdiction. |
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(a)
is committed by a citizen of The
Bahamas;
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(b)
was directed towards or resulted
in the carrying out of an offence under this Act in The Bahamas or
against a citizen of The Bahamas;
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(c)
was directed towards or resulted
in the carrying out of an offence under this Act against a State or
government facility of The Bahamas
outside The Bahamas;
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(d)
was directed towards or resulted
in the carrying out of an offence under this Act committed in an
attempt to compel The Bahamas to
do or refrain from doing any
act;
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(e)
was committed by a stateless
person who is ordinarily resident in The Bahamas;
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(f)
was committed on board an
aircraft that -
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(i)
is operated by the Government of
The Bahamas or a citizen of The Bahamas; or
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(ii)
is registered in The
Bahamas;
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(g)
was committed on board a vessel
that is flying the flag of The Bahamas or is registered in The
Bahamas; or
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(h)
threatens the national security
of The Bahamas.
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14.
Where a person is taken into
custody as a result of an investigation undertaken under section 7,
the Attorney General shall -
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Notification to the appropriate State through United Nations. |
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(a)
notify through the Secretary
General of the United Nations as, the State which established
jurisdiction respect of an application
brought under section 9 or
10, of the detention of that person and of the circumstances that
warranted the detention; and
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(b)
communicate the final outcome of
the proceedings to the Secretary General of the United Nations for
transmission of the information
to the other State.
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15.(1)
Where a person who is being
detained or who is serving a sentence of imprisonment in the
territory of one State whose presence in
another State is requested
for purposes of identification, testimony or otherwise providing
assistance in obtaining evidence for
the investigation or
prosecution of the offences for the purposes of this Act, that
person may be transferred if the following conditions
are met
-
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Conditions for transfer of persons detained. |
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(a)
the person freely gives his
informed consent; and
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(b)
the competent authorities of both
States agree, subject to such conditions as those States may deem
appropriate.
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(2)
Unless the State from which a
person is to be transferred pursuant to subsection (1) so agrees,
that person shall not be prosecuted,
detained or subjected to any
other restriction of his personal liberty in the territory of the
State to which the person is transferred
in respect of any acts
done or convictions received prior to his departure from the State
from which that person was transferred.
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(3)
Where a person is transferred
under subsection (1) from The Bahamas, the person transferred shall
receive credit for service of the
sentence being served in The
Bahamas for the time spent in the custody of the State to which
that person was transferred.
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(4)
Unless the Attorney-General
otherwise directs, all expenses incurred in respect of any requests
made under this section, must be paid
by the State making the
request.
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16.
The Attorney-General is the
competent Authority in The Bahamas for the exchange of information
relating to criminal investigations
or extradition proceedings in
respect of an offence under this Act.
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Attorney-General to be the competent Authority. |
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17.
Section 6 of the Mutual Legal
Assistance (Criminal Matters) Act applies to the procedure to be
adopted in respect of a request made
from another State for mutual
assistance in obtaining a freezing or forfeiture order under this
Act with such modifications as are
necessary to give effect to such
requests.
|
Application Ch. 98. |
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18.(1)
The Attorney-General may,
subject to affirmative resolution make Regulations to give effect
to this Act.
|
Regulations. |
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(2)
The Attorney-General may by
Order amend -
|
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|
(a)
the Annex to the Convention in
accordance with the terms of Article 23 of the Convention; or
|
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|
(b)
the First Schedule.
|
First Schedule. |
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19.
The Acts specified in the
Second Schedule are amended to the extent so specified in that
Schedule.
|
Amendments to Acts. Second Schedule |
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FIRST SCHEDULE |
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|
TREATIES RESPECTING TERRORISM |
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|
1.
Convention on offences and
certain other Acts committed on Board Aircraft signed at Tokyo 14th
September, 1963.
|
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2.
Convention for the Suppression
of Unlawful Seizure of Aircraft, done at the Hague on 16th
December, 1970.
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3.
Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation, done at
Montreal on 23rd September, 1971.
|
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4.
Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons
including Diplomatic Agents, adopted
by the General Assembly of the
United Nations on 14th December, 1973.
|
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5.
International Convention
against the taking of Hostages, adopted by the General Assembly of
the United Nations 17th December, 1979.
|
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6.
International Convention for
the Suppression of the Financing of Terrorism adopted by the
General Assembly of the United Nations on
9th December, 1999.
|
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7.
Inter-American Convention
Against Terrorism adopted at the Second Plenary Session of the
Organization of American States held June
3, 2002.
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SECOND SCHEDULE |
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