Action on key recommendations for witness and victim protection and mutual assistance at the state-to-state level remains uncertain in government’s efforts to comply with requirements to combat money laundering and the financing of terrorism.
This is according to the last follow-up report on Guyana’s progress in correcting deficiencies in its legislative and institutional architecture that were found by the Caribbean Financial Action Task Force (CFATF), which said the government indicated that “further deliberations” were required.
With needed amendments to the Anti-Money Launder-ing and the Countering the Financing of Terrorism (AMLCFT) Act still under review in the National Assembly, Guyana now has until November to be in compliance with the recommendations or face a call for measures by other CFATF members of the grouping. The amendments were tabled in the form of an AMLCFT amendment bill on April 22, one week before the April 30 deadline the country had to do so, according to CFATF’s fourth follow-up report on Guyana’s progress, which was dated April 30. The government subsequently sought to persuade the opposition majority to fast-track the amendments through the National Assembly but failed to make a convincing case, despite warning of potential sanctions.
The report, issued almost a month before Guyana faced a plenary meeting in Nicaragua, noted that the enactment of the AMLCFT amendment bill “should substantially enhance the level of a compliance of a majority of the outstanding recommendations” while also noting that there were still 15 outstanding core and key recommendations needed for full compliance.
Among these, CFATF listed recommendations that are not covered by the amendments, such as the development of “clear and efficient processes for the execution of mutual legal assistance requests in a timely way and without undue delay” and their implementation. Some of these recommendations were described as being outstanding because of inadequate submissions by government, in some instances, and because the government advised that some of them needed further deliberation as policies issue that required policy decisions.
Gaps in the legislative framework in relation to the enactment of various articles of UN Conventions had also been noted in Guyana’s first review and the report said that while the government advised that the country seeks to implement the relevant measures, full implementation of the UN Convention Against Transnational Organ-ized Crime, the Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances and the Convention Against Countering The Financing Of Terrorism remained outstanding.
Under the UN Convention Against Transnational Organ-ized Crime, also known as the “Palermo Convention,” states are required to take appropriate measures to provide effective physical protection of witnesses where necessary and to permit witness testimony in a manner that ensures the safety of the witness. To show compliance, the report said Guyana advised that this is covered under the Evidence Act which allows for the taking of oral evidence and making submissions to the court by audio visual link and a copy of the legislation with the relevant provision was submitted.
“No information with regard to the provision of physical protection of witnesses has been provided for this report,” the Task Force said.
It also noted that the government advised that Article 25 of the Convention requires further deliberations as it is “a policy issue.” Article 25, which provides for “Assistance to and protection of victims,” obligates states to take appropriate measures within their means to provide assistance and protection to victims of offences covered by the Convention, in particular in cases of threat of retaliation or intimidation. It also obligates them to establish appropriate procedures to provide access to compensation and restitution for victims and, subject to domestic law, enable views and concerns of victims to be presented and considered at appropriate stages of criminal proceedings against offenders in a manner not prejudicial to the rights of the defence.
Guyana is also still lagging in implementation of Article 19 of the Palermo Convention, which requires states to have bilateral or multilateral agreements, whereby in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more states, the competent authorities can establish joint investigative bodies or allow for joint investigations by agreement on a case-by-case basis. The report said that while authorities advised that joint investigations have been undertaken by agreement on a case-by-case basis, but no information as to when and who were the party of such joint investigations and the terms of the agreements were provided to verify compliance.
The report also noted that government advised that Article 8 of the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, also known as the “Vienna Convention,” and Article 1(1) of the Convention Against Countering the Financing of Terrorism required “further deliberations” as they are policy issues. The former covers the Transfer of Proceedings, obligating that state parties give consideration to the possibility of transferring to one another proceedings for criminal prosecution of offences in cases where such transfer is considered to be in the interests of a proper administration of justice. The latter, meanwhile, provides a definition for “funds” to include “assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers’ cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit.”
Two areas where government also signalled the need for the recommendations to be reviewed, as a result of important shifts in policy that would result, relate to the taking of statements for use in investigations and prosecutions in money laundering and financing of terrorism cases, and in the postponement or waiving of arrests of suspects by police for the purposes of evidence gathering.
Mutual assistance
In the case of the recommendations covering mutual legal assistance, the report noted that the recommendation for areas to include freezing, and seizure or confiscation of assets was going to be addressed by amending the Mutual Assistance in Criminal Matters Act, which is catered for in the AMLCFT amendment bill. However, with regard to the recommendation for a clear and efficient process for the execution of legal assistance requests, the Task Force found the government’s submission wanting and, embarrassingly, it labelled the document “unacceptable” as it had no official logo to indicate that it was an authentic one emanating from the Ministry of Home Affairs.
According to the report, the authorities advised that the Ministry of Home Affairs develop clear and efficient processes to ensure that requests for mutual legal assistance are executed without delay. Guyana submitted a document entitled ‘Procedure for executing requests for Mutual Legal Assistance’ under a general heading ‘Ministry of Home Affairs,’ it noted.
“The document as submitted does not provide details on agencies or officials or their positions and functions during each step of the process. Additionally, there is nothing on the document i.e an official logo to suggest that it is an authentic document from the Ministry of Home Affairs. As such, the document is unacceptable,” the Task Force’s report declared.
It was also noted that the document offers no timelines for any part of the process and stated that it depends on the information submitted and the nature of the request. According to the report, the submission of information on the actual processes, the various agencies or entities involved and the actual length of time taken to respond to any mutual legal assistance requests in 2011 and 2012 would be necessary to enable an assessment as to the timeliness of the process.
“As such it is not possible to assess the effectiveness of the mechanisms put in place to address the recommendation. Given the above this recommendation remains outstanding,” the report said.
Another recommendation requires the development of procedures for the spontaneous exchange of information. Guyana advised that a Memorandum of Understanding (MOU) for the exchange of information was drafted and forwarded to the Attorney-General’s office for review and finalisation by March this year. However, there was no indication as to the identity of the parties to the MOU, the report said.
The government advised that for spontaneous exchange of information, contact can be made directly with the Director, FIU or the Commissioner of Police through INTERPOL or the Head of Customs Anti-Narcotics Unit (CANU). “The above measures appears to deal more with informal rather than the spontaneous sharing of information which involves sharing of information considered relevant with other foreign competent authorities or sharing relevant information not indicated in an original request from another authority. As such, the above does not provide details about the spontaneous exchange of information,” the report, however, said.
FIU strengthening
Meanwhile, according to the report, the provision of training for financial and competent authorities is being planned as part of the technical assistance being provided by the Caribbean Basin Security Initiatives (CBSI).
However, it added that there is need for Guyana to demonstrate continued implementation by submitting information for each report regarding the provision of training both to the competent authorities and financial institutions.
Since its last report, the examiners stated that the human and physical resources of the Financial Intelligence Unit (FIU) have been substantially increased as part of a plan to improve the unit’s capacity to fulfil its legislative responsibilities and as a result of the measures put in place it was stated that two recommendations were met.
The report also said that during the period October 2012 to March 2013, the FIU held seven meetings and two training sessions with competent authorities, including the Bank of Guyana (BoG), the Guyana Revenue Authority and the newly-appointed Supervisory Authority for Co-operatives, the Supervisory Authority for Registered Charities, the Supervisory Authority for Casinos, the Supervisory Authority for Dealers in Precious and Semi-Precious Stones and the Supervisory Authority for Dealers in Precious Metals and various financial institutions, such as cambios, money transfer agencies, a casino and the Guyana Banker’s Association. The meetings with the financial institutions were held to clarify legal obligations while those with the government agencies dealt with relevant roles of specific agencies. Follow-up training on currency reporting was provided by the FIU to customs officers of the GRA.
However, despite this the report said one of the examiners’ recommendations remains outstanding.
Another recommendation that remains outstanding and is not covered under the AMLCFT amendments has to do with training for the relevant agencies under the legislation in order to enable effective implementation. It was pointed out that while a training workshop was conducted by the US Department of Treasury late last year for staff of the BoG, the authorities should submit information on details of training being provided to all agencies in future reports.
Also while the FIU had issued guidelines on suspicious transaction reporting (STR) to financial institutions in January, in keeping with one of the recommendations, no information with regard to whether consideration was given to issuing a circular to the public has been provided in the last report.
On the recommendation that dealt with the FIU issuing periodic reports, which include statistics, typologies and trends, the report that said that the unit issued its first statistical reports on its website on January, 31, 2013. In formation on typologies and trends were not included.
“Given the above, one of the examiners’ recommendations has been partially met while the remaining two were partially met,” the report said.
