Expert Insight

Banking Secrecy and the Recovery of Assets and Proceeds from Corruption Offences Dean of the Faculty of Law State of Kuwait . Dr. Faisal Al-Kandari

First: Restriction of banking and Professional Secrecy

The legislator restricted banking secrecy and did not file it from the financial institutions to facilitate the procedures for reporting corruption offences. Article (24) of the law concerning the establishment of the General Anti-Corruption Commission provided that (without prejudice to the provisions of Law No. 32 of 1968 concerning monetary and Central Bank of Kuwait and the regulation of banking professions and amended Laws herewith, the Commission, as soon as it becomes aware of a corruption offence, collects information and evidence. Accordingly, the Commission has access to the records, documents and documents related to the crime in question. The Commission also has the right to request to be provided with any data, information or documents related to the same, and it may decide to refer it to the competent authorities).

The legal professionals and independent accountants were committed also to report a corruption offence if information related to these transactions was obtained in the circumstances in which they are subject to professional confidentiality.

This is in contrast to what was stated in Article (12) of Law No. (106) of 2013 concerning Anti-Money Laundering and terrorist financing that obligated financial institutions, and specific non-financial works and professions, to notify the investigations unit without delay of any transaction, or any attempt to conduct the transaction regardless of its value if it was suspected or if there is sufficient evidence to suspect that these transactions are carried out with funds obtained from an offence, or related funds, or can be used to carry out money laundering or terrorist financing operations.

Article (12) also provides that legal professionals and independent accountants are required to notify about any transaction if information related to those transactions was obtained in circumstances in which they are subject to professional confidentiality.

It is noteworthy that reporting the offences in general and corruption offences in particular is not considered as slander and beyond the scope of the job secrets that must be kept secret and not disclosed. Rather, the job secret must be disclosed if it is intended to prevent an offence to occur, or if the Law requires had to be done.  Whereas, Article (18) of the Public Funds Protection Law, provided that (Anyone who knows there is a project to commit an offence of what is provided in this Law, or knows that it actually occurred, and refrains from reporting this to the Public Prosecution or the Audit Bureau, it shall punish by imprisonment for a period not more than three years and shall pay a fine not exceed ten thousand dinars, or one of these two fines

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