Wednesday, 11 March 2009 | I SERIES — Number 10

BOLETIM DA REPÚBLICA

OFFICIAL PUBLICATION OF THE REPUBLIC OF MOZAMBIQUE

NATIONAL PRESS OF MOZAMBIQUE

NOTICE

The material to be published in the "Boletim da República" must be submitted in a duly authenticated copy, one for each subject, which must include, in addition to the necessary indications for this purpose, the following endorsement, signed and authenticated: For publication in the "Boletim da República".

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SUMMARY

Assembly of the Republic:

Law No. 7/2009: Approves the Statute of the Judicial Magistrates, and revokes Law No. 10/91, of 30 July.

Law No. 8/2009: Creates the category of Deputy Attorney-General Adjunct, in the career of the Public Ministry Magistrates.

Law No. 9/2009: Defines the management and disciplinary body of judges in the administrative, tax, and customs jurisdiction.

Law No. 10/2009: Regulates the functioning of common courts when they judge crimes of a strictly military nature.

Law No. 11/2009: Regulates acts, business, transactions, and operations of all kinds.

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ASSEMBLY OF THE REPUBLIC

Law No. 7/2009 of 11 March

Becoming necessary to adapt the Statute of the Judicial Magistrates, approved by Law No. 10/91, of 30 July, to the new reality imposed by the Constitution and the requirements dictated by the transformations that have occurred in the judicial bodies, especially regarding the career, management, and discipline of judges, under the provisions of item q) of paragraph 2 of Article 179 of the Constitution, the Assembly of the Republic determines:

Article 1. The Statute of the Judicial Magistrates, annexed to this Law and which forms an integral part of it, is approved.

Art. 2. Law No. 10/91, of 30 July, is revoked.

Art. 3. This Law enters into force on the date of its publication.

Approved by the Assembly of the Republic, on 30 October 2008.

The President of the Assembly of the Republic, Eduardo Joaquim Mulémbwè.

Promulgated on 23 January 2009.

Let it be published.

The President of the Republic, ARMANDO EMÍLIO GUEBUZA.

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Statute of the Judicial Magistrates

CHAPTER I General Principles

ARTICLE 1 (Scope of Application)

1. The provisions of this Statute apply to all judicial magistrates, regardless of the situation in which they find themselves.

2. The Statute also applies, with the necessary adaptations, to Judicial Magistrates who are exercising functions by contract or by appointment under a special regime.

ARTICLE 2 (Composition of the Judicial Magistrates)

The Judicial Magistrates consist of professional judges of the Supreme Court and the other judicial courts defined by law.

ARTICLE 3 (Function of the Judicial Magistrates)

1. It is the function of the Judicial Magistrates to apply the law, administer justice, and enforce their decisions.

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3. It is incumbent upon the Provincial Courts to judge the proceedings related to crimes of a strictly military nature in which subordinate officers and sergeants are accused, and for district courts to judge the rank and file, based on the territory or the applicable penalty.

4. It is incumbent upon the specialized department of the Criminal Investigation Police to conduct the investigation of crimes of a strictly military nature, under the direction of the Public Ministry.

ARTICLE 4 (Framework/Status)

1. Judges, prosecutors, and military justice officers of military courts and prosecutor's offices are included in the judicial and public ministry magistrates, provided they meet the requirements established by law.

2. Military magistrates and military justice officers who do not meet the requirements established in the law are reassigned to their original cadres, without prejudice to acquired rights provided for in the Statutes of the Judicial Magistrates and the Public Ministry Magistrates, respectively.

3. The framework referred to in paragraph 1 of this article is made in accordance with the law.

ARTICLE 5 (Destination of Processes, Books, and Property)

The processes existing in military courts and prosecutor's offices, as well as documents, books, and property belonging to them, transfer to the judicial courts and prosecutor's offices, respectively, with the exception of property belonging to the Armed Forces.

ARTICLE 6 (Material Means)

It is incumbent upon the Government to determine the destination of the material means affected to military courts and prosecutor's offices.

ARTICLE 7 (Budgetary Allocation)

The budgetary allocation assigned to military courts and prosecutor's offices is incorporated into the budgets of the respective judicial courts and prosecutor's offices.

ARTICLE 8 (Revocation)

Law No. 11/87, of 23 September, and any other legislation contrary to this Law are revoked.

ARTICLE 9 (Entry into Force)

This Law enters into force on the date of its publication.

Approved by the Assembly of the Republic, on 30 October 2008.

The President of the Assembly of the Republic, Eduardo Joaquim Mulémbwè.

Promulgated on 23 January 2009.

Let it be published.

The President of the Republic, ARMANDO EMÍLIO GUEBUZA.

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Law No. 11/2009 of 11 March

Having the need to review Law No. 3/96, of 4 January, the Exchange Law, in order to adapt it to the standards of functioning of a market with free circulation of people, goods, and services, and therefore, devoid of any type of restrictions on payments and transfers in international current transactions and other related aspects, the Assembly of the Republic, under the provisions of paragraph 1 of Article 179 of the Constitution, determines:

ARTICLE 1 (Object)

This Law aims to regulate acts, business, transactions, and operations of all kinds that:

a) take place between residents and non-residents and result or may result in payments or receipts from abroad;

b) not meeting the requirements referred to in the previous item, are qualified by law as exchange operations.

ARTICLE 2 (Scope of Application)

1. This Law governs:

a) the realization of exchange operations by individuals or legal entities non-residents, when such operations concern goods or values located in national territory and rights over these goods or values, or refer to activities exercised in the same territory;

b) the realization, by residents, of exchange operations concerning goods, values, or rights acquired, generated, or located abroad, over which there is a legal obligation to repatriate;

c) the realization, by residents, of exchange operations concerning goods or values located in national territory or rights over these goods or values.

2. For the purposes of the provision in the previous number, activities exercised in national territory are considered to be services provided, the transmission of rights, and goods encumbered or alienated, when located, produced, used, or exploited in the country.

ARTICLE 3 (Exchange Residence)

1. For the purposes of this Law, the following are considered residents in national territory:

a) national citizens who reside in Mozambique or whose stay abroad does not exceed one year;

b) national citizens whose stay abroad, for a period equal to or greater than one year, originates from health or study reasons;

c) all foreign citizens who have lived in Mozambique for more than one year, except diplomats, consular representatives or equivalents, foreign military personnel exercising governmental functions in the Country, as well as members of their respective families;

d) private law legal entities with headquarters in national territory;

e) Mozambican public law legal entities, as well as Mozambican public funds endowed with administrative and financial autonomy;

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f) national citizens who are diplomats, consular representatives or equivalents, military personnel exercising governmental functions abroad, as well as members of their respective families;

g) branches, agencies, delegations, subsidiaries, or any other forms of representation of non-resident legal entities, legally represented in national territory.

2. Under the terms of this article, in case of doubt, it is presumed that the person concerned is a resident, and it is incumbent upon them, in such case, to rebut this quality.

ARTICLE 4 (General Duty of Verification and Information)

1. Entities authorized to conduct exchange business must verify, before carrying out the operations in which they intervene, their reality, nature, and compliance with applicable legal and regulatory provisions.

2. For the purposes of the previous number, interested parties must provide the indispensable proof elements for the legal characterization and requested operation, namely those relating to the determination of subjects, object, value, and due dates.

3. The entities referred to in paragraph 1 of this article must send information about the exchange operations carried out to the Bank of Mozambique, in the terms established by it.

ARTICLE 5 (Foreign Currency)

For the purposes of the provision in this Law, its respective regulatory instruments, and complementary legislation, foreign currency is understood as banknotes and metallic coins with legal tender in the countries of issue and any other means of payment abroad, expressed in currency or unit of account, used in international compensations or payments.

ARTICLE 6 (Exchange Operations)

1. All exchange operations are subject to registration, in the terms provided in their respective regulation.

2. Without prejudice to the obligation of registration established in the previous number, the realization of exchange operations classified as current transactions is free of authorization.

3. Without prejudice to what is established in the previous number, the realization of the following exchange operations requires authorization from the exchange authority, in the terms and conditions to be defined in specific regulation:

a) the acquisition or alienation of coined gold or silver;

b) the export of gold, silver, platinum, and other precious metals in bar, ingot, or in any other unworked form;

c) the opening and movement of accounts of non-residents in national currency, when related to capital operations;

d) the opening and movement of accounts of residents in foreign currency or in units of account used in compensations or international payments;

e) the granting of credit to residents in foreign currency, including by discounting bills of exchange, promissory notes, invoice extracts, expressed or payable in foreign currency, expressed or payable in national currency, when non-residents intervene in these titles as drawers, acceptors, endorsers, guarantors, whether as subscribers or as issuers;

f) the acquisition or alienation of coupons of foreign credit titles;

g) operations expressed in foreign currency, in units of account that involve or may involve total or partial settlement of capital transactions, carried out between residents and non-residents;

h) operations expressed in national currency in units of account that involve or may involve total or partial settlement of capital transactions carried out by non-residents;

i) transfers and receipt from abroad of any values or means of payment, which do not fall under the situation provided in the preceding number;

j) the arbitration of exchange rates;

k) the import, export, or re-export, when carried out by institutions authorized to conduct exchange business, of:

i. foreign banknotes or metallic coins in circulation and other external means of payment;

ii. bills of exchange, promissory notes, and invoice extracts, shares or bonds, whether national or foreign, or coupons, as well as public debt titles.

4. For the purposes of the provisions in paragraphs 2 and 3 of this article, current transactions are understood as any payments or receipts in foreign currency that are not for the purpose of transferring capital, namely payments due in connection with external trade, remittances of values for family expenses, and other current obligations, in terms to be regulated.

5. The following are considered capital operations, subject to the authorization of the exchange authority, in the terms and conditions to be regulated:

a) foreign direct investment;

b) real estate investment;

c) operations on certificates of participation in collective investment organizations;

d) opening and movement of accounts with financial institutions abroad;

e) credits linked to the transaction of goods or the provision of services;

f) loans and financial credits;

g) guarantees;

h) transfers in execution of insurance contracts;

i) operations on securities and other instruments traded in the money and capital markets;

j) physical import and export of values;

k) personal loans;

l) other operations qualified as capital operations that may be defined by law.

ARTICLE 7 (Entities Authorized to Conduct Exchange Business)

1. For the purposes of this Law, the exercise of exchange business is considered to be the habitual, for-profit, on one's own or another's account, realization of exchange operations.

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2. The following are authorized to conduct exchange business:

a) banks;

b) exchange houses;

c) travel or tourism agencies;

d) hotels and similar;

e) other entities or institutions that may be defined by law.

3. It is incumbent upon the Council of Ministers to define the terms and conditions for the exercise of the activity referred to in paragraph 1 of this article.

ARTICLE 8 (Entry and Exit of Foreign Currency)

1. The entry into national territory of foreign currency and other means of payment abroad is free, and their values must be declared whenever they exceed the limits fixed in the respective regulation.

2. The exit of foreign currency, as well as other means of payment abroad, is free for non-residents, up to the limit declared upon entry into the country, in accordance with the previous number.

3. The exit of foreign currency, as well as other means of payment abroad, is free for residents, upon proof of retention and legitimate possession, issued by entities authorized to conduct exchange business, within the limits fixed in the respective regulation.

ARTICLE 9 (Obligation to Declare and Remit Exchange Assets)

1. Resident entities are obliged to declare values and rights acquired, generated, or held abroad.

2. Without prejudice to what is established in the previous number, resident entities must remit to the country the revenues from the export of goods, services, and foreign investment.

3. The terms and conditions for the remittance of export revenues are contained in the respective regulation.

ARTICLE 10 (Contraventions)

The following constitute exchange contraventions, punishable by a fine of ten to one hundred thousand meticais, if the offender is an individual, or of forty to four hundred thousand meticais, if the offender is a legal entity:

a) the realization of any exchange operation, without registration in the terms established in this Law or in regulation;

b) the realization of import, export, or re-export operations of capital, as well as their total or partial settlement, carried out without authorization from the competent authority, when legally required;

c) the realization of export operations of coined gold or silver or in bar, or in ingot or in any other unworked form, as well as platinum and other precious metals, without authorization from the competent authority, when legally required;

d) the realization of export, import, or re-export operations of foreign banknotes or metallic coins in circulation and other external means of payment, without authorization from the competent authority, when legally required;

e) the opening and movement of accounts of non-residents in national currency, when related to capital operations, as well as the opening and movement of accounts of residents in foreign currency or in units of account used in compensations or international payments, without observance of the provision in this Law or in regulation;

f) the granting of credit to residents in foreign currency including by discounting bills of exchange, promissory notes, and invoice extracts, expressed or payable in foreign currency, expressed or payable in national currency, when non-residents intervene in these titles, without authorization from the competent authority, when legally required;

g) the omission of the duty to declare values and rights acquired, generated, or held abroad by resident entities, when legally required;

h) the omission of the special duty to remit to the country the revenues from the export of goods, services, and foreign investment by resident entities, when legally required;

i) the realization of transfers and receipt abroad of any values or means of payment, without observance of the provision in this Law or in regulation;

j) the violation of imperative provisions of this Law and its regulations, not provided for in the previous items.

ARTICLE 11 (Especially Serious Contraventions)

1. It constitutes an especially serious contravention, punishable by a fine of twenty to two hundred thousand meticais, if the offender is an individual, or of one hundred thousand to one million meticais, if the offender is a legal entity, the simultaneous practice of more than one exchange contravention.

2. The aggravation provided for in the previous number applies to anyone who commits an exchange contravention, provided that the same results in payment, receipt, or any other form of patrimonial value increase equal to or greater than the equivalent of six hundred thousand meticais.

ARTICLE 12 (Accessory Penalties)

1. The goods or values used in the illegal exercise of exchange operations are always declared forfeited to the State.

2. Depending on the gravity of the exchange offense, the following accessory penalties are also applicable:

a) suspension, total or partial, of authorizations for the exercise of exchange business, with or without closure of the establishment;

b) prohibition of carrying out exchange operations, with or without suspension of economic activity, for a period not exceeding that of the prohibition.

3. The suspension, inhibition, closure, or temporary prohibitions are made for a minimum of six months and a maximum of one year.

ARTICLE 13 (False Declarations)

False declarations made with the aim of obtaining the necessary authorizations for the realization of exchange operations are punished with the same penalty that would be applicable to the consummated offense.

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ARTICLE 14 (Responsibility of Legal Entities, Societies, and Individual Agents)

1. For the practice of the offenses referred to in this Law, individuals or legal entities, even irregularly constituted, and associations without legal personality, may be held responsible, jointly or not.

2. The responsibility of the collective entity does not exempt from individual responsibility, including criminal, of the members of its bodies who exercise management positions or those who act on its legal or voluntary representation.

3. The responsibility of individual agents is not obstructed by the fact that the legal type of offense requires certain personal elements and these only exist in the person of the represented, or requires that the agent practice the act in their interest, having the representative acted in the interest of the represented.

4. The legal entities and societies referred to in the previous number are jointly liable for the payment of fines in which their representatives or employees are condemned, unless it is proven that they acted against the order or instruction of the represented or employing entity.

ARTICLE 15 (Legal Presumption of Responsibility)

It is presumed that those who act in the name and on behalf of another proceed in conformity with instructions received, regardless of the individual responsibility that may be applicable.

ARTICLE 16 (Responsibility of Directors and Officials)

The provisions of Articles 313, 314, 317, 318, and 322 of the Penal Code are applicable, with the necessary adaptations, to directors, officials, or employees of the institutions upon which the granting of authorizations for the realization of exchange operations depends.

ARTICLE 17 (Active and Passive Corruption)

Anyone who, within the scope of this Law, practices acts of active or passive corruption, in accordance with penal legislation, is punished with the most severe penalty applicable to the crime, in accordance with the said legislation.

ARTICLE 18 (Statute of Limitations for Contraventions)

1. The procedure for exchange contravention prescribes three years after the practice of the offense.

2. Fines and accessory sanctions prescribe in the same period, counted from the date of the final condemnatory decision.

ARTICLE 19 (Instruction and Decision of Processes under the Competence of the Bank of Mozambique)

1. It is incumbent upon the Bank of Mozambique to instruct and decide on processes of exchange contraventions practiced by institutions under its supervision or through them.

2. Once the process is instituted, the accused is notified to, if desired, present a written defense, within a period of ten days.

3. The notification referred to in the previous number is made by registered mail with acknowledgment of receipt.

4. Police authorities and public services must provide all necessary assistance for a correct investigation and instruction of processes under the competence of the Bank of Mozambique.

5. Without prejudice to what is established in paragraph 1 of this article, if the Bank of Mozambique, during the instruction, discovers the existence of criminal indications, it shall inform the Public Ministry for the purposes of instituting the competent criminal procedure.

ARTICLE 20 (Instruction and Decision of Other Processes)

1. It is incumbent upon police authorities to instruct processes not included in paragraph 1 of the previous article.

2. Upon establishing the offense, the police authority must draw up the competent notice of offense, which is recorded and processed in accordance with the general terms of the criminal process.

ARTICLE 21 (Special Regime of Penalization)

1. Without prejudice to the provisions in Articles 19 and 20, whenever the fine to be applied does not exceed one-fifth of the maximum values indicated in the penalty ranges contained in the body of Article 10, the instructing entity may dispense with the prior submission of charges against the accused.

2. When using the faculty conferred by the previous number, the instructing entity must notify the offender of the payment of the fine, within a period of ten days or, if desired, within the same period, appeal to the instructing entity, in writing, by presenting proof of deposit of the bank guarantee value or the value of the fine, within the said period.

3. In case of appeal, this is equivalent, for all legal purposes, to the defense, and one may appeal the decision that falls upon it, in accordance with paragraph 2 of Article 23 and Article 24 of this Law and in accordance with the general terms of the criminal process.

ARTICLE 22 (Seizure of Values)

1. Banknotes and coins, checks, and other titles, or values that constitute the object of the offense, may be seized, by means of proof document, when such seizure proves necessary for instruction or in cases where there are indications that from the offense results, as an accessory penalty, the loss of goods to the State.

2. The seized values must be deposited in a banking institution to the order of the instructing entity, as guarantee for the payment of the fine and procedural costs.

ARTICLE 23 (Decision of the Competence of Judicial Courts)

1. It is incumbent upon judicial courts to decide on the offenses provided for in this Law, except those that, in accordance with paragraph 1 of Article 19, are assigned to the Bank of Mozambique.

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2. The decision of the judicial courts is made in accordance with the general terms of the criminal process.

ARTICLE 24 (Appeal)

1. The decisions of the instructing entities referred to in Articles 19 and 20 may be appealed to the competent judicial court, within a period of ten days, counted from the notification of the decision.

2. The appeal must be presented in writing, indicating the grounds for the appeal.

3. The appeal has a suspensive effect.

ARTICLE 25 (Regulation)

1. The regulation of this Law is issued by the Council of Ministers.

2. The Bank of Mozambique is responsible for issuing the necessary normative acts for the execution of this Law.

ARTICLE 26 (Entry into Force)

This Law enters into force on the date of its publication.

Approved by the Assembly of the Republic, on 30 October 2008.

The President of the Assembly of the Republic, Eduardo Joaquim Mulémbwè.

Promulgated on 23 January 2009.

Let it be published.

The President of the Republic, ARMANDO EMÍLIO GUEBUZA.