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accounts, regardless of their type, in any bank located in its territory and, if so, to receive
all the data from
the identified accounts.
Beneficiary property issues are addressed in more detail in the ‘Forty Recommendations’ adopted by the
Financial Action Task Force (FAFT) on 20 June 2003. In the ‘Recommendations’, the term ‘beneficial
owner’ refers to the natural person(s) who ultimately owns or controls a customer and/or the person on whose
behalf a transaction is being conducted. It also incorporates those persons who exercise ultimate effective
control over a legal person or arrangement.
In order to actually confiscate the instrumentalities and proceeds of a crime, law enforcement bodies often
have to do hard work on identifying the ultimate owner of title
to assets, which may practically be
documented in the name of a legal person or arrangement.
In the ACN countries, beneficiary property issues are, mainly, regulated by the anti-money laundering
legislation.
In
Georgia
, ‘beneficial owner’ is defined in paragraph ‘q’ of Article 2 of the Law On Facilitating the
Prevention of Illicit Income Legalization as revised in 2016. According the definition, the beneficial owner
– natural person(s) representing an ultimate owner(s) or controlling person(s) of a person or / and
a person
on whose behalf the transaction (operation) is being conducted; beneficial owner of a business legal entity
(as well as of an organizational formation (arrangement) not representing a legal entity, provided for in the
Georgian legislation) shall be the direct or indirect ultimate owner, holder or / and controlling natural
person(s) of 25% or more of such entity’s share or voting stock, or natural person(s) otherwise exercising
control over the governance of the business legal entity. That said, any benefit derived from criminal
proceeds, from corruption and money laundering in particular,
by any person, including the beneficial owner,
is subject to confiscation pursuant to the criminal legislation of Georgia, as derivative proceeds of crime.
Moreover, if a person knew that they are deriving benefit from proceeds of crime (no matter whether or not
they had previous knowledge about the type of crime), then, besides confiscation of the benefit, they are
subjected to criminal liability under the Article 186 of the Criminal Code of Georgia (Purchase or Sale of
Illegally Obtained Object at Previous Knowledge).
As per Article 8 of the Money Laundering and Terrorist Funding Act of
Estonia
, a beneficial owner shall
mean as follows:
(1) a
natural person who, taking advantage of their influence, exercises control over a transaction, operation
or another person and in whose interests or favour or on whose account a transaction or operation is
performed;
(1
1
) a beneficial owner is also a natural person who ultimately holds the shares or voting rights in a company
or exercises final control over management of a company in at least one of the following ways: 1) by holding
over 25 per cent of shares or voting rights through direct or indirect shareholding or control, including in the
form of
bearer shares; or 2) otherwise exercising control over management of a legal person;
(2) a beneficial owner is also a natural person who, to the extent of no less than 25 per cent determined
beforehand, is a beneficiary of a legal person or civil law partnership or another contractual legal
arrangement, which administers or distributes property, or who exercises control over the property of a legal
person, civil law partnership or another contractual legal arrangement to the extent of no less than 25 per
cent;
(3) a beneficial owner is also a natural person who, to an extent not determined beforehand,
is a beneficiary
of a legal person or civil law partnership or another contractual legal arrangement, which administers or
distributes property, and primarily in whose interests a legal person, civil law partnership or another
contractual legal arrangement is set up or operates.