Contacting the Sanctions Monitoring Board
Any person may send a communication to the Sanctions Monitoring Board to obtain a ruling on whether any intended action or transaction would fall foul of applicable sanctions, whether EU, UN or domestic sanctions. Such a request for a ruling would ideally be accompanied by an assessment on the part of the enquirer through applicable arguments as to whether such action or transaction is in breach of sanctions.
Once the Sanctions Monitoring Board has issued a ruling on a particular issue, this would need to be followed. No liability can attach to a person who has acted in conformity with a ruling of the Board.
Once the Board has issued a ruling, an enquirer may send a request for reconsideration on the part of the Board, provided new facts previously not made available to the Board are presented with the request for reconsideration.
The Board may be contacted through the following email address; Sanctions.mfea@gov.mt
Or in writing through the following address:
The Chairman
Sanctions Monitoring Board
Ministry of Foreign Affairs and Trade Promotion
Palazzo Parisio
Merchants Street,
Valletta.
Legislation
Sanctions in Malta are
governed by the National Interest (Enabling Powers) Act, Cap 365 of the Laws of
Malta and their application is monitored by the Sanctions Monitoring Board.
The
2018 Amendments to the National Interest (Enabling Powers) Act
Amendments enacted to The
National Interest (Enabling Powers) Act in 2018on 30 May 2018 provide for the
direct applicability into Maltese
law
of the sanctions issued by the United Nations Security Council and the
sanctions imposed by the Council of the European Union. These
measures are immediately binding
in their entirety in Malta upon their enactment and are part and parcel of
Maltese law. Given that upon the issuance of new sanctions by the United
Nations Security Council or by the
Council of the European Union, these become directly applicable under Maltese
law, it is incumbent upon all persons in Malta to keep track of developments in
sanctions and this may be done by following the following web-links as provided
in clause 2 of the National Interest (Enabling Powers)
Act as follows:
http://eur-lex.europa.eu/oj/direct-access.html/
- Link to the EEAS web-site which has a
consolidated list of listed persons and entities;
https://www.un.org/sc/suborg/en/sanctions/un-sc-consolidated-list
https://www.un.org/press/en
The
Sanctions Monitoring Board
The application of
sanctions in Malta are monitored by the Sanctions Monitoring Board which is
chaired by the Ministry for Foreign Affairs and Trade Promotion.
The Sanctions Monitoring Board is regulated by the
National Interest (Enabling Powers) Act and is comprised of eighteen officials,
acting collectively and representing the followingMinistries/Authorities:
Ministry for Foreign
Affairs and Trade Promotion (Chairman),
Office of the Attorney
General;
Financial Intelligence
Analysis Unit;
Malta Security
Services;
Malta Police;
Office of the Prime
Minister;
Ministry for Home
Affairs;
Ministry responsible
for Defence;
Ministry of Finance;
Ministry responsible
for the Economy;
Trade Department;
Customs Department;
Central Bank of Malta;
Malta Financial
Services Authority;
Ministry responsible
for maritime affairs;
Ministry responsible
for aviation matters;
Ministry responsible for lands;
Ministry responsible for immigration
matters.
Functions
of the Sanctions Monitoring Board
The functions of the
Sanctions Monitoring Board are laid down in the National Interest (Enabling
Powers Act). The Board is responsible for the following:
Monitoring of sanctions issued by the Council of the European Union and United Nations
Security Council and national sanctions;
Proposing the listing
and de-listing of persons and entities to the United Nations Sanctions Committees, the
Council of the European Union or through an Order to be issued by the Prime
Minister in accordance with article 3(4)(a) of the National Interest (Enabling
Powers) Act;
Receiving and considering applications
from designated persons or entities for de-listing, or unfreezing of property,
where the criteria for designation or freezing are not met, or are no longer
met, and from persons or entities who have been erroneously or inadvertently
designated, and to make recommendations thereon;
Authorising access to frozen funds or
other assets which the Board determines to be necessary for basic expenses, for
the payment of reasonable costs and fees for legal, medical, professional or
other essential services, or for documented extraordinary expenses;
The Board may also take decisions, make
recommendations, grant authorisations, issue rulings, issue guidance and
notices, and refer to the relevant authorities for action, assistance or
information and have such other functions that may be assigned to it by the
Prime Minister, through regulations made under the National Interest (Enabling
Powers) Act.
The
National Listing Procedure
Clause 3(4) of the National Interest
(Enabling Powers) Act grants the Prime Minister
the power to order any of the following:
- the designation of
any person or entity;
- the immediate
freezing of property of designated persons and entities and/ or of any other persons or entities as may be
indicated in the order;
- the immediate freezing of all
property that is owned or controlled, whether wholly or jointly, directly or
indirectly, by designated persons or entities; or of property that is derived
or generated from funds or other assets owned or controlled, directly or
indirectly, by designated persons or entities; or of property of persons and
entities acting on behalf of or at the direction of designated persons or
entities;
- prohibiting any
person or entity from making available any funds or other assets, economic
resources or financial or other related services, directly or indirectly,
wholly or jointly, to or for the benefit of designated persons or entities;
entities owned or controlled, directly or indirectly, by designated persons or
entities; and persons or entities acting on behalf of, or at the direction of,
designated persons or entities, unless licensed, authorised or notified for
such purpose;
- the investigation
of any matter relating to the listing of any person;
- the confiscation of
property of any listed person and
- the applicability mutatis mutandis of the provision of any
other law in respect of the assets of a listed person or of a person who is
subject to an investigation and which may lead to that person’s listing;
- the revocation of
any such aforementioned orders;
Penalties
for Breach of Sanctions
Any person or entity
found guilty of a breach of sanctions by a Court of Law will incur penalties in
accordance with the National Interest (Enabling Powers) Act. Criminal
proceedings are initiated by the Commissioner of Police and in case guilt is
determined, the following penalties are applicable:
For individuals : a term of imprisonment
from a minimum of twelve (12) months to a maximum of twelve (12) years; and/or
a fine of not less than twenty-five
thousand euros (€25,000) and not exceeding five million
euros (€5,000,000).
For entities a fine of not less than eighty
thousand euros (€80,000) and not exceeding ten million
euros (€10,000,000) for corporations;
Corporate
Liability
There is corporate liability when sanctions
are breached by an entity following the lack of supervision or control of an
officer of the company (as listed in Article 121D of the Criminal Code) for the
benefit of the body corporate;
The Courts may take any action against an
offending body corporate, including the suspension or cancellation of a
licence; temporary or permanent closure of the establishment; compulsory
winding up of the body corporate; and exclusion from entitlement to public
benefits or aid;
Moreover, where an offence is committed by a body corporate, every person
who, at the time of the commission of the offence, was a director, manager,
secretary or other similar officer of such body corporate, shall be guilty of
an offence unless he proves that the offence was committed without his
knowledge and that he exercised all due diligence to prevent the commission of
the offence.
Jurisdiction of the
Maltese Courts
The National Interest (Enabling Powers Act)
expands the jurisdiction of the Maltese Courts, over and above the provisions
of article 5 of the Criminal Code, to cover the following situations:
- Where only part of
the action giving rise to the offence is committed in Malta;
- Where the person
committing the violation is a Maltese national or habitual resident in Malta;
- Where the offence
was committed for the benefit of a body corporate registered in Malta;
- Where the gain from
the commission of the offence was received in Malta; and
- Where a person in
Malta knowingly assisted or induced another person to commit the offence;
Forfeiture
of Goods in Violation of Sanctions
The Sanctions Monitoring Board may make recommendations with regards to
the disposal of seized goods which are seized and found to be contrary to
sanctions. The seizure and disposal of such goods will be made by Customs in
accordance with the Customs Ordinance, and on the recommendations made by the
Board with regard to their disposal.
In giving its recommendation, the Board shall consider the most
economically advantagious option for disposal in full adherence with the
laws and regulations in force in Malta. Moreover, this provision applies retroactively, i.e.
to all goods which are in Malta at the time of the coming into force of these
amendments.
Procedure
for the Listing of Individuals and Entities
1.
The Sanctions
Monitoring Board will initiate the process for designating individuals or
entities whether at UN level, EU level or National level upon its own
initiative, or following a report received from the Law Enforcement Authorities
or Intelligence Services.
2.
The Sanctions
Monitoring Board may also initiate the process for the designation of
individuals and entities following the request received by another country
accompanied by sufficient and reasonable information making a case for
designation.
3.
When the
Sanctions Monitoring Board, receives information for the designation of a
person or entity, it will, in conjunction with the office of the Attorney
General, make an assessment of the applicable sanctions regime and take a decision
as to whether the designation is to be made at UN level, EU level or at
national level, or concurrently at national and UN/EU level.
4.
The Sanctions
Monitoring Board will, in conjunction with the Office of the Attorney General,
assess the facts related to the proposed designations and the fulfilment of the
applicable sanctions criteria. In this endeavour, the Board will ensure that
the facts in their entirety constitute a prima facie reasonable basis for designation.
Such proposals for designations are not dependent on any ongoing criminal
proceedings.
5.
The Board will conduct the necessary
verifications with regard to any moveable and immovable property in Malta
belonging to the person that it is to be designated or which are partly owned
by him or are otherwise under his control.
6.
The Sanctions
Monitoring Board, when proposing persons for listings, is to follow the
procedures established by the relevant UN Sanctions Committees/Council of the
European Union for the designation of persons and entities and to the
particular rules created for the particular sanctions regimes under which such
persons will be listed.
7.
In its proposal
the Sanctions Monitoring Board will indicate whether the status of a
designating person may be made known.
8.
In the case of
national sanctions issued under clause 3(4) of the National Interest (Enabling
Powers) Act, a notification in this regard is to be circulated among members of
the Sanctions Monitoring Board for circulation to financial institutions and
relevant stakeholders. Moreover a specific notification of the national Order
will be issued on this web-page
Proposed Listings to another Country
When
proposing listings to another country, the Sanctions Monitoring Board will
ensure that sufficient information is provided which will constitute a prima
facie reasonable basis for designation by that country.
Petitions submitted by Individuals and Entities
concerning a UN Listing
1. Individuals and entities that do not or no longer
meet the designation criteria established by the UN sanction regime and who
would like to petition the UN Sanctions Committee, must follow the procedure
established by the UN Committee pertaining to the sanctions regime in question
as laid down in the Committee’s guidelines. This can be either by applying
through the State or his nationality or residence, which will in turn submit an
application to the Sanctions Committee on behalf of the petitioner; or by
petitioning the Focal Point for Delisting directly or in the case of the Al
Qaeda sanction list, the application must be submitted to the Office of the
Ombudsperson of the UN which shall receive requests from individuals, groups
and entities seeking to be removed from the UN Sanctions Consolidated List, in
accordance with the procedures in annex II of UNSCR resolution 1904(2009),1989
(2011), and 2083 (2012) to accept de-listing petitions
2. Should the UN Committee Guidelines allow for a
petition to be brought forward by the State, a petitioner who is a designated
Maltese national or foreign national who is resident in Malta may submit an
application to this effect to the Sanctions Monitoring Board
3. The petition may be submitted
in writing, enclosing any relevant material on the following address :
The Chairman
Sanctions Monitoring Board
Ministry of Foreign Affairs
and Trade Promotion
Palazzo Parisio
Merchants Street,
Valletta.
Additionally a copy of the
petition and documents may be sent in writing on sanctions.mftp@gov.mt .
Petitions submitted by Individuals and Entities
concerning an EU Listing
Individuals
and entities that are designated by the Council of the European Union, may
petition the EU Commission making a case for de-listing on the basis that they
no longer satisfy the designation
criteria established by the EU sanction regime. These petitions will be
examined on an annual basis prior to the review of designations for every
sanctions regime.
Review of National Listings /
Petitions
by Persons inadvertently Designated due to a Similar Name
1.
A petitioner may submit an application before the
First Hall Civil Court in accordance with Clause 4(18) of the National Interest
(Enabling Powers) Act requesting the issuance of an order to cancel the
designation made in accordance with Clause
3(4) of the said Act.
2.
A petitioner may also petition the Sanctions
Monitoring Board for a review of a designation a made in accordance with Cause
3 (4) of the National Interest (Enabling Powers) Act.
3.
The petition may be submitted in writing, enclosing
any relevant material on the following address :
The Chairman
Sanctions Monitoring Board
Ministry of Foreign Affairs
and Trade Promotion
Palazzo Parisio
Merchants Street
Valletta
In addition to the above, a
copy of the petition and documents may be sent in writing on sanctions.mftp@gov.mt .
4.
Upon receipt of the Petition, the Sanctions
Monitoring Board will, in consultation with the law enforcement and
intelligence authorties and the Office of the Attorney General, make an
assesment and give a formal reply to the petitioner.
5.
Should the Sanctions Monitoring Board, in
consultation with the Attorney General, agree with the petitioner, the
Sanctions Monitoring Board will make a case to the Office of the Prime with a
recommendation that an order is issued to cancel the designation of the
petitioner.
6.
Should the Sanctions Monitoring Board issue a
negative reply, the petitioner may submit an appeal to the First Hall Civil
Court in accordance with clause 4 (18) of the National Interest (Enabling
Powers) Act.
Applications
for the unfreezing of funds or other assets
7.
All applications for the unfreezing of funds or
other assets which are necessary for basic expenses, payment of certain types
of fees, expenses and service charges or extraordinary expenses shall be
received by the Sanctions Monitoring Board .
8.
Upon receipt of the application, the Sanctions
Monitoring Board will assess the arguments brought forward and in consultation
with the Attorney General reach a conclusion allowing or denying the release of
frozen funds. The assessment will take into account the conditions referred to
the particular sanctions regime to which the designation refers or conditions
attached to an Order issued in accordance with article 4 of the National
interest Enabling Powers Act.