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Part B: Mineral Rights - Part B-6: Beneficiation - Processing, Trade & Transport - 35. Beneficiation – Processing, Trade and Transport | 35.12 Criminal Violations and Penalties

Criminal violations are those wilful acts in violation of the law that are punishable by fines and imprisonment after conviction by a judicial tribunal following due process of law, where the burden of proof on the state is higher than that required to find a person guilty of a civil offense. The penalties for criminal violations typically increase in the case of repeat offenses.

35.12 Example:

Article [_]

(1) Any person who knowingly violates Article [_] (on the prohibition against processing, trading or dealing in, and transporting development minerals without a licence issued under the [Act][Code][Law]), commits an offense that shall be punishable by a fine of not more than [_] or imprisonment for a term not exceeding [_] or both.

(2) Any holder of an Authorised Processing Facility, Authorised Trader/Dealer or Authorised Transporter licence who knowingly engages in the trading, sale or transport of minerals other than the development minerals for which his licence was issued without a licence or other authorisation to deal in such other minerals commits an offense that shall be punishable by a fine of not more than [_] or imprisonment for a term not exceeding [_] or both.

Article [_]

(1) Any person who knowingly falsifies a certificate of origin or any material information on a certificate of origin of development minerals shall be guilty of fraud on the person to whom the falsifying party sells or delivers such minerals and to all subsequent parties who purchase the same minerals without knowledge of the fraud.

(2) Any person who commits the fraudulent acts cited in subsection (1) above commits an offense that shall be punishable by a fine of twice the price for which the person sold or transported the development minerals, or imprisonment for [_] year(s), or both.

Article [_]

(1) Any person who -

(a) in any application under this [Act][Code][Law] knowingly makes any statement which is knowingly false or misleading in a material way;

(b) in any report or return submitted in pursuance of any provision of this [Act][Code][Law], knowingly includes or permits to be included any information which is knowingly false or misleading in a material manner;

(c) places or deposits, or is accessory to the placing or depositing of, any material in any place with the intention of misleading any other person as to the nature of development minerals in that place;

(d) mingles or causes to be mingled with any sample of development mineral any substance which will enhance the value or in any way or change the nature of the development mineral with the intention to cheat, deceive or defraud, commits an offence for which the penalty, upon conviction, is –

(i) in the case of an individual, a fine not exceeding [_] or imprisonment for not more than [_] year(s); or

(ii) in the case of a body corporate, to a fine not exceeding [_]

(2) Where an offence which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of a director, manager, secretary or other similar office of the body corporate, or of any person who was purporting to act in any such capacity, that individual as well as the body corporate, commits an offence and shall be punished accordingly.

Article [_]

Where any person commits an act in relation to development minerals which amounts to criminal activity, such person shall be subject to national laws relating to criminal prosecution.

Annotation

The assumption is that each jurisdiction has laws governing criminal acts, including money laundering, theft, fraud, forgery etc. As such, any criminal act committed in the processing, trading, transportation or in any way dealing in development mineral would be prosecuted pursuant to such national laws against criminal acts.

The principle aim of the provisions in the example is to make it illegal for any individual or company to process, trade, deal in, transport or stack, store, warehouse any development mineral without being licenced to do so.

The example also establishes that falsifying a certificate of origin or any information on it is a fraud for which the perpetrator will be liable to all subsequent purchasers of the development minerals in question; and that the fraud will also be punishable as a crime. It further lists deliberate falsification of applications and reports, as well as deceptive practices with respect to the nature and quality of development minerals, as criminal violations that will be punished by fines or imprisonment.

This example also renders companies and their officers liable for any criminal acts committed with respect to development minerals.