Property not forfeited in favour of government when not of criminal origin

The court held that the fact that the couple were granted a banking facility in order to acquire the property meant that the spouses had a regular employment with remuneration and this further proved that the moneys were not a result of the crime committed

This was held by the First Hall Civil Court in its judgement of the 8th May 2019 regarding an application filed by Ritienne Apap and Silvio Apap against the Commissioner of Police and the Attorney General. The facts of the case revolved around a criminal offence that Silvio Apap, one of the plantiffs, had been found guilty of committing. By means of a judgement of the Criminal Court of the 18th March 2015 as confirmed by the Court of Criminal Appeal by means of a judgement of the 30th November 2017, Silvio Apap had been found guilty of a crime related to drug importation in breach of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta. In conjuction with the punishment of imprisonment for the crimes committed and a fine of forty thousand Euro (€40,000), the Court had also ordered that all the assets of Silvio Apap were to be forfeited in favour of the Government of Malta in terms of the Dangerous Drugs Ordinance, including all his moneys and other movable and immovable property.

Prior to their marriage, Ritienne Apap and Silvio Apap had acquired a property by means of a deed of sale. This property eventually became their matrimonial home and since it formed part of Mr Apap’s assets it was also affected by this order of forfeiture. In view of this, spouses Apap filed an application before the First Hall Civil Court whereby they requested the Court to release the said property and other property such as moneys held in the sole name of Ritienne Apap, which formed part of the community of acquests existent between the spouses in virtue of their marriage. The basis of this application was that the plaintiffs held that these properties did not result from the commission of any criminal offence or any proceeds thereof.

This application was filed in terms of Article 22C of the Dangerous Drugs Ordinance which states that where  an  order  of  forfeiture  is issued  the person found guilty, or the third party therein mentioned, may bring an action for a declaration that any or all of the movable or immovable property so forfeited is not profits or proceeds from the commission of any offence under this Ordinance (whether or not so adjudged by a court of criminal justice) nor property acquired or obtained, directly or indirectly, by or through any such profits or proceeds.

The defendants from their end opposed the application by stating that the order of forfeiture should not be amended unless clear proof is brought before the Court showing that the origin of the property is not illicit.

During the pendency of the case, it resulted that the matrimonial home had been acquired in 1999 and in order to finance its acquisition a banking facility had been granted and had always been paid and was still being paid. Moreover it resulted that during the period between the years 1994 and 2011 Silvio Apap had always retained a regular job and this resulted from the job history records held by JobsPlus whereas Ritienne Apap remained employed until the present day. Spouses Apap argued that the said property had been acquired from money earned from these jobs and not from any moneys related to the crimes committed by Mr Apap which were committed in 2014 and the payments towards the banking facility were currently being made from bank accounts where Ritienne Apap’s earnings from her regular employment were deposited.

When considering the facts of the case the First Hall Civil Court highlighted the fact that, as stated in a previous judgement in the names of Francis Muscat vs. Kummissarju tal-Pulizija decided by the First Hall Civil Court on the 31st May 2010, the onus lies with the plaintiffs to prove to the Court that the property in question in fact had not been acquired with the proceeds obtained from the commission of a criminal offence or any illicit activity. In the present case, the Court when considering the evidence that was brought before it, was satisfied that the matrimonial home of spouses Apap had not been acquired from proceeds of the criminal offence committed by Mr Apap since this had been acquired fifteen years prior to the occurrence of the crime.

Moreover it held that the fact that the couple were granted a banking facility in order to acquire the property meant that the spouses had a regular employment with remuneration and this further proved that the moneys were not a result of the crime committed. Moreover, it resulted that the payments towards the banking facility were currently being made from the remuneration acquired by Mrs Apap from her employment and therefore the Court was satisfied that the house was not acquired with money generated from criminal or illicit activities.

In view of the above, the Court, whilst ordering that the bank accounts held solely in the name of Silvio Apap and a particular vehicle that was used to commit the crime were to remain forfeited in favour of the Government, also ordered that the matrimonial home, other vehicles owned by the applicants, a small boat and the bank accounts held in the sole name of Ritienne Apap were to be released from this order of forfeiture since it was saitisfied that their origin was not related to any criminal or illicit activities.

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