Abstract
This chapter looks at the implementation of the criminal policy by observing the activity of law enforcement agencies and the judiciary. The effectiveness of these two organs of state is referred to as efficiency, which is measured in relation to their primary functions through criminal statistics on the number of (preliminary) investigations, proceedings, convictions, and types of punishments imposed. In order to disclose what impact that the money-laundering offence has had over the past years of its being in force, as compared to the above-mentioned highlighted intentions of the legislature, this part deals with the implementation of the law, which was identified in Part I as an empirical measure of the effectiveness of a law. The part looks both at the effects of criminalising money laundering and at the application of the Anti-Money Laundering Act. It does this by analysing official statistics and looking at the way the law is implemented, from the point of view of the authorities who provide the statistics. This data is not only representative of the implementation outcomes but expresses also the level of efficiency from the perspective of the different criminal justice authorities. Given the abundant literature that summarises and analyses the data and thanks to the results of an empirical research conducted shortly after the introduction of the anti-money laundering policy, this study, by now, approaches the statistics with an already critical perspective.
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Notes
- 1.
Andreas 2015, pp. 52–53.
- 2.
Full compliance with Article 261 of GCC might not impede the infiltration of illicit financial flows, as much as the law that imposes a driving speed limit is not effective if car accidents take place despite obedience. See Rottleuthner 1983, p. 90.
- 3.
Aubert 1974, p. 86.
- 4.
The implementation of the Recommendations is rigorously assessed through Mutual Evaluation processes, and through the assessments conducted by the International Monetary Fund (IMF) and the World Bank (WB). After such mutual evaluations are conducted, Mutual Evaluation Reports are compiled, and countries that are found to be non-compliant with the standards are called upon to address the deficiencies. A follow-up report is thereafter published, the idea being to keep the countries on their toes. Jurisdictions that are found to be clearly non-compliant could be sanctioned. See FATF 2010, and 2014.
- 5.
- 6.
See Bussman 2015.
- 7.
Tax crimes and financial crimes are, for example excluded by these surveys. See PKS 2015, p. 1.
- 8.
The PKS statistics give information on the volume of cases processed by the police in relation to every offence. The aim of these statistics is to acquire a general overview regarding criminality and a specific overview of the types of offences committed, the volume and the structure of the suspects, as well as the changes in criminal rates. They also have the function of acquiring knowledge for planning, organising and deciding about the prevention and repression of criminality. In addition, they may be used for criminological and sociological research and criminal policies. See PKS 2015, p. 1.
- 9.
Destatis statistics are generated mainly for use by law enforcement departments, policy makers, legal actors and scholars. The media and other disseminators of information may make use of these statistics too. Destatis, Series 10, volume 3, Oswald 1997, p. 6.
- 10.
However, in its 2013 Annual Report, the FIU lamented the fact that follow-up responses did not contain sufficient qualified information to enable a typological evaluation. The report stated that ‘in many reports, the predicate offences are often the triggering factor for filing a suspicious transactions report, whereas mostly no information is provided on the actual money-laundering activities’. See FIU 2013, pp. 26, 33.
- 11.
Money-laundering cases can be differentiated between independent and integrated investigations. The former are commenced based on a suspicion of money laundering. A typical example would be where a suspicious transaction report is filed, according to Articles 11 and 13 of the Anti-Money-Laundering Act. The latter, i.e. the integrated investigations, are initiated in the context of another case relating to another offence and relating information are not communicated to the FIU.
- 12.
Oswald 1997.
- 13.
The empirical research consisted of a combination of three sources: an analysis of 380 law enforcement acts, oral interviews with 16 public prosecutors, and written questionnaires submitted to 75 financial institutions. For purposes of understanding how the system of STRs and the subsequent investigations function, criminal records were analysed in order to compile a profile of the transactions reported and the subsequent law enforcement activities. Oswald aimed at shedding light on the link between the criminalisation of money-laundering and the co-operation with the private sector and therefore focused her research on investigations commenced on the basis of a filed suspicious transaction, without taking into consideration cases where allegations of money-laundering were triggered by a previous investigation into the commission of a predicate offence. Due to the then limited quantity of statistics on the implementation, the research was conducted through extensive interviews with experts, the idea being not only to determine their opinions and attitudes towards the law, but also to compile surveys on the legal practice. Written questionnaires were submitted to financial institutions to find out what impact the Anti-Money-Laundering Act has had with respect to the burden imposed. Oswald was especially interested in revealing problems encountered in applying the law and in co-operating with the law enforcement agencies. She adopted this method not only because it was convenient in terms of the time and costs saved, but also to assure the anonymity of the respondents. Oswald 1997, pp. 120, 164.
- 14.
Oswald 1997, p. 110.
- 15.
The hypotheses are to be found in Oswald 1997, pp. 113–119.
- 16.
- 17.
Oswald 1997, p. 195.
- 18.
Ibid., p. 287.
- 19.
- 20.
BT-Drucksache 12/6784, p. 7.
- 21.
Oswald 1997, p. 288.
- 22.
Ibid.
- 23.
Ibid.
- 24.
Ibid., p. 289.
- 25.
The ‘doppel Anfangsverdacht’, double initial evidence was required in relation to both the laundering of proceeds of crimes and predicate offence.
- 26.
In a meeting held in 1994, the prosecutors, accordingly, agreed to link the possibility of opening an investigation where it is suspected that the asset derives from one of the designated predicate offences, according to the criminological practice. But the standard of proof required by Article 111 b–f of the German Code of Criminal Procedure, for the purpose of seizing criminal assets in relation to Article 261 of the GCC, namely the necessity of proving the origin of the assets from one of the listed predicate offences, was considered still too high to fulfil the goal of confiscating criminal assets. Also, the introduction of the extended confiscation regulated by Article 73d German Code of Criminal Procedure was not considered effective in practice, because even when prosecutors suspected t the illegal provenance of the goods but the accused was able to prove, at least, that he had some legitimate income, this would have been enough to discharge the suspicion. Oswald 1997, p. 155.
- 27.
FATF 2010, p. 50.
- 28.
Ibid., p. 179.
- 29.
Ibid., p. 179.
- 30.
On two extreme cases, the private institutions observed a lack of interest and indifference from the offices, which did not reply to written requests or to arranged telephone calls for investigative purposes. Oswald 1997, p. 182.
- 31.
Ibid.
- 32.
Destatis, Series 10, volume 3, 2013, pp. 37, 51.
- 33.
FATF 2010, p. 61.
- 34.
In particular, the report specifies that data for the entire Federal Republic, i.e. including the Länder of Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia, these data have only been recorded since 2007. See FATF 2010, p. 61.
- 35.
Destatis, Series 10 on the administration of justice by the state’s prosecution, volume 2.6, 2013, p. 96.
- 36.
According to this definition, organised crime is ‘the planned violation of the law for profit or to acquire power, which offences are each, or together, of major significance, and are carried out by more than two participants who co-operate within a division of labour for a long or undetermined time span using (a) commercial or commercial-like structures, or (b) violence or other means of intimidation, or (c) influence on politics, media, public administration, justice and the legitimate economy’, see Levi 1998, pp. 335, 336.
- 37.
BKA 2015, pp. 6, 7.
- 38.
FATF 2010, p. 63.
- 39.
Ibid., p. 64.
- 40.
Destatis, Series 10 on the administration of justice, volume 3, 2013, pp. 1438–1439.
- 41.
Ibid., pp. 214–215.
- 42.
FATF 2010, p. 60.
- 43.
Destatis, Series 10 on the administration of justice, volume 3, 2013, pp. 136, 137.
- 44.
Ibid., volume 2.6, 2013, p. 22.
- 45.
The figures for the period 2004–2007 refer to the entire area of the Federal Republic of Germany. However, the year 2004 does not include figures for Schleswig-Holstein.
- 46.
Figures derived from the Destatis, Series 10 on the administration of justice by the state’s prosecution service, volume 2.6, 2005–2008.
- 47.
FATF 2010, p. 60.
- 48.
In 2015, it amounted to 92.6% and in 2013 it amounted to 92.6%. See PKS 2015, p. 97.
- 49.
See Destatis, Series 10 on the administration of justice, volume 3, from 2004 to 2008.
- 50.
Figures are provided by FIU, 2002–2015 reports on Germany. Reports are available both in German and English languages, however, the reports quoted here are the English versions, whereas the 2014 report available at the time of writing is in German.
- 51.
FIU, 2013 Report, p. 11.
- 52.
Destatis, Series 10 on the administration of justice by the state’s prosecution, volume 2.6, 2013, p. 96.
- 53.
FIU, 2013 Report, p. 26.
- 54.
Ibid., p. 29.
- 55.
FIU, 2015 Report, p. 29.
- 56.
Data are provided by FIU, 2002–2015 reports.
- 57.
Data referred to the previous years are provided by the FIU, 2002–2015 Reports.
- 58.
Data are provided by the FIU, 2002–2015 Reports.
- 59.
FIU, 2015 Report, p. 13; FIU, 2014 Report, p. 15.
- 60.
Tax Justice Network 2015.
- 61.
FATF 2010, p. 170.
- 62.
FIU, 2013 Report, p. 46.
- 63.
Ibid., p. 31.
- 64.
Ibid., p. 33.
- 65.
BKA 2012.
- 66.
Ibid., p. 4.
- 67.
FATF 2010, p. 213.
- 68.
Ibid., p. 221.
- 69.
Ibid., p. 213.
- 70.
Ibid., p. 24.
- 71.
A U.S. statute defines a major money-laundering country as one ‘whose financial institutions engage in currency transactions involving significant amounts of proceeds from international narcotics trafficking.’ However, the complex nature of money-laundering transactions nowadays makes it difficult in many cases to distinguish the proceeds of narcotics trafficking from the proceeds of other serious crime. Moreover, financial institutions that engage in transactions involving significant amounts of proceeds of other serious crime are vulnerable to narcotics-related money laundering. See Bureau for International Narcotics and Law Enforcement Affairs 2009.
- 72.
FATF 2010, p. 22.
- 73.
The selected illicit markets deal in the following: heroin, cocaine, cannabis, ecstasy, amphetamines, illicit trade in tobacco products, counterfeiting, missing trader intra-community fraud and cargo theft. The overall figures on illicit revenues may be very conservative. Some important illicit markets, such as trafficking in human beings, both for sexual and labour exploitation purposes, or extortion, illegal gambling and other types of fraud different from missing trader intra-community fraud, lack estimates for most of the 28 EU member states, and thus are not included in this calculation, see Savona and Riccardi 2015, p. 35.
- 74.
Savona and Riccardi 2015, p. 35.
- 75.
The estimates include the following illicit markets: heroin, cocaine, cannabis, amphetamines, ecstasy, illicit trade in tobacco products, counterfeiting, missing trader intra-community frauds, and organised cargo theft. See Savona and Riccardi 2015, pp. 36, 160.
- 76.
Unger et al. 2013, p. 39.
- 77.
- 78.
FIU 2013, p. 22.
- 79.
FATF 2010, p. 82.
- 80.
BKA 2015, p. 6.
- 81.
The European Parliament commissioned a study on the impact of organised crime in Europe. However, money laundering was excluded, despite the fact that it was considered an important enabler, because its costs would have doubled the costs already counted for the predicate crimes, since it was assumed that the offence of money laundering itself did not generate costs for victims. Statistics on the costs of organised crime in Europe are measured on the basis of the financial and welfare impact organised crime has on European victims and on Europeans who are indirect victims. The costs are not measured based on the benefits that accrue to criminal offenders in Europe, nor do costs entail the value of the assets realised in consequence of the confiscation of criminal assets. Levi et al. 2013, pp. 15, 20.
- 82.
Transcrime is a Joint Research Centre on Transnational Crime, Università di Trento/Università Cattolica del Sacro Cuore di Milano (Italy).
- 83.
Savona et al. 2007, pp. 13, 153.
- 84.
See Savona et al. 2007, p. 13.
- 85.
See Unger et al. 2013.
- 86.
One consideration needs to be made on the premises of the ECOLEF project. In order to assess the threat of money laundering, the authors have assumed that ‘money launderers are economic actors, and […] they follow the law of economics, which dictates that they should maximise profits and minimise risks’. This has been shown not to hold true for the Italian Mafia. For example, mafia bosses may decide to invest and launder their money in a low-profit business to establish their hegemony over a territory. Also, were it the case that maximisation of profits and the reducing of risks were the prime aim of money launderers, there would be much less drug-related criminality, given the high incidence of imprisonment that attends those who are involved in this field. This would lower the economic gain resulting from the crime. Unger et al. 2013, p. 12.
- 87.
Unger et al. 2014, p. vii.
- 88.
The study starts from a money-laundering threat-analysis and carries on by looking at the legal implementation of the policies, at the execution of such policies, at the enforcement and international co-operation, and it ends with a final evaluation of the effectiveness, which is the result of a cost-benefit analysis. Unger et al. 2014, p. 2.
- 89.
Unger et al. 2014, p. 6.
- 90.
Ibid., p. 125. The European study differs from the present study in the approach it takes. This study measures the effectiveness of a criminal justice system by the limited utilisation of criminal law, having regard to the principles of proportionality and subsidiarity. In addition, this book takes account of the possibility that ineffective criminalisation creates de facto impunity and that this ‘process of decriminalisation’ might have been a latent intent or at least an acceptable consequence. Furthermore, this book postulates that a high rate of conviction might not be a symptom of effectiveness. The fact that an increase in the rate of convictions may be attributed to an increase in the incidence of money laundering and not to the effectiveness of the criminal justice system is discussed elsewhere in this book. See Unger et al. 2014, p. 170.
- 91.
See Unger et al. 2013.
- 92.
Unger et al. 2014, p. 140.
- 93.
The indicators are explained in Unger et al. 2014, pp. 188–199.
- 94.
Results are shown by means of a table, see Unger et al. 2014, pp. 202–203.
- 95.
Costs are considered on-going policymaking, sanction costs, FIU, supervision, law enforcement and court trials, duties of the private sector, reduction in privacy, efficiency costs for society and the financial system. Benefits components taken into consideration are fines, confiscated proceeds, reduction for money-laundering and predicate offences, reduction in the damages to the real economy and the risks to the financial sector. Unger et al. 2014; p. 207.
- 96.
Unger et al. 2014, p. 235.
- 97.
Ibid., p. 218.
- 98.
Ibid., p. 220.
- 99.
Ibid., p. 218.
- 100.
Whitehouse 2003, p. 140.
- 101.
See, for example a study conducted in Berlin by an NGO: Antidiskriminierungsberatung Brandenburg 2013. Killias and Nunes conducted similar research that led to parallel conclusions in Switzerland. The authors repudiate the notion that anti-money-laundering regulations led to the discrimination of foreign citizens because they are not allowed to open bank accounts; see Killias and Nunes 2012.
- 102.
FATF 2010, p. 170.
- 103.
For more details on the cost-benefit assessments, see Sect. 4.9
- 104.
FATF 2010, p. 50.
- 105.
Ibid.
- 106.
See FIU, 2013 report, p. 46.
- 107.
See, among others, the essay of Hassemer and Starzacher, who argue that data protection should be considered a fundamental right. Hassemer and Starzacher 1993, pp. 16 ss.
- 108.
The study puts the costs of the policy at 44 million euros. See Unger et al. 2014, p. 218.
- 109.
Merton 1983, p. 201.
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Zoppei, V. (2017). Data on the Implementation of the Anti-Money Laundering Regime. In: Anti-money Laundering Law: Socio-legal Perspectives on the Effectiveness of German Practices. International Criminal Justice Series, vol 12. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-180-7_6
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