The complex criminal offense of money laundering is to be replaced by a clear new criminal provision
The German Federal Government today adopted the draft law submitted by the German Federal Minister of Justice and Consumer Protection to improve the fight against money laundering under criminal law. The draft law aims to further strengthen the foundations for effective and consistent criminal prosecution of money laundering.
The draft law was drawn up in close cooperation with the German Federal Ministry of Finance. It also implements Directive (EU) 2018/1673 of the European Parliament and of the Council on combating money laundering by criminal law.
Federal Minister of Justice Christine Lambrecht explains:
“We want to make it much easier for public prosecutors and courts to prove money laundering and hold perpetrators accountable. This is important in order to stop criminals who hide criminal profits and inject dirty money into the economic cycle. Organized crime and serious economic crimes must be pursued with all rigor.
We want to replace the complex old facts of money laundering with a clear new criminal provision and expand it significantly. It then no longer has to be proven from which criminal offense an asset originates.
In future, the following should apply: If assets are obtained and concealed through criminal offenses, this is money laundering – regardless of whether the predecessor offenses are drug trafficking, extortion, human trafficking, fraud or infidelity.
Federal Finance Minister Olaf Scholz explains:
“The new rules give the fight against money laundering even more bite. It will be easier to prove money laundering and to take illegal profits from criminals. For the first time, every crime can be a predicate offense to money laundering, which is a paradigm shift. We can drain dirty money flows faster and more effectively. This protects citizens from criminal activities. The reform is a core element of the anti-money laundering and terrorist financing strategy. We want to intensify the fight against money laundering also at EU level by expanding and strengthening the rules, supervision and the exchange of information. “
The draft law contains the following key points:
- The heart of the draft law is the waiver of a selective catalog of predicate offenses. In future, every crime can be a predicate offense to money laundering. This is a paradigm shift in German money laundering criminal law, with which we are implementing another point of our strategy for combating money laundering and terrorist financing, which we adopted at the end of last year and which is based on the first national risk analysis. By dispensing with the catalog of predicate offenses, the fight against crime in this area will be much more effective in the future. This applies in particular to the area of organized crime, in which perpetrators work in a division of labor and the reference to certain serious predicate offenses cannot always be determined, for example when tracing suspicious financial transfers (so-called “follow the money” approach).
- The money laundering offense will thus take effect much more frequently than before. Offenses such as theft, embezzlement, fraud, breach of trust and extortion have so far only been considered predicate offenses of money laundering if they were committed commercially or through gangs. Evidence has often been difficult in law enforcement practice.
- Penalty framework: As before, the penalty framework should enable imprisonment of up to five years or a fine to be imposed. In particularly serious cases, especially if the perpetrator acts on a commercial basis or as a member of a gang, the range of punishment is as before six months to ten years imprisonment. Anyone who frivolously does not recognize that it is an asset obtained through a criminal act should be punished with a prison sentence of up to two years or a fine.
- Investigative powers: Particularly fundamental rights relevant investigative powers of the law enforcement authorities such as telecommunications surveillance and online searches should – as before – exist in serious cases of money laundering. The inclusion of even minor crime would be disproportionate.
- Competence of the economic criminal chambers: In future, the economic criminal chambers are to be responsible for money laundering proceedings falling under the jurisdiction of the regional courts, insofar as special knowledge of economic life is required to assess the case.
You can find the federal government’s draft law to improve the fight against money laundering by criminal law here:
The legislative procedure for the “Law to improve the criminal law combating money laundering” can be found here.