Asset freeze over Nexia BT financial controller to cover just €5,000, court rules

A court of Magistrates has reduced the scope of a freezing order issued during money laundering proceedings against Nexia BT financial controller Katrin Bondin Carter to just €5,000, saying it would be unjust to continue to freeze assets which were not obtained illegally.

Magistrate Donatella Frendo Dimech noted that in the sitting held on 12 January, prosecuting police inspector Ian Camilleri had declared under oath that that during his investigations into the case, it had been determined that Bondin Carter had not made any illicit gain.

Inspector Camilleri had made the declaration in reply to a question by Bondin Carter's defence lawyer Franco Debono.

The aim of a freezing order was to preserve the assets of a person accused of a crime, so that should guilt be found, the gain made through crime can be confiscated, be it cash or property equivalent to the value of the gain.

“This applies when the charge is one of a relevant crime as well as if the charge is of money laundering,” said the magistrate. “However, although in proceedings relating to money laundering offences, the legislator chose that all the property of the accused be confiscated unless he proves before the civil courts that the provenance of that same property was not from money laundering, the fact remains that everything is tied to the amount of alleged illicit earning coming from the laundering or the predicate offence.”

Examining the relative dispositions of the Prevention of Money Laundering Act, the court said that the aim of the legislator was to ensure that no benefit is derived from illicit gains. Rather, the accused should be deprived entirely of profits or income obtained or involved in the crime of money laundering, as well as property that was acquired or obtained directly or indirectly from it.

“Therefore, in cases where the amount of illicit gain is determined a priori or…it results that there was no gain, that is that the accused person received no property or monies of illicit provenance, that the freezing order is to remain in force for the length of proceedings, with the difficulties and suffering that such an order undoubtedly brings with it, it would be truly unjust…that the order extend over property, monies or assets of every kind that exceed the amount of alleged gain. Much more so when there is no gain!”

The court upheld Bondin Carter’s request and varied the freezing order, limiting it to €5,000, whilst leaving it in force. The magistrate also ordered the Director of the Asset Recovery Bureau to identify and seize the amount of €5,000 in cash or property, moveable or immovable.

This included documents and legal instruments “of any form,” including electronic or digital ones, which show rights over assets of this type or interest in them, including bank credits, travellers’ cheques, bank cheques, money orders, shares, titles, bonds, drafts and letters of credit.