Offences under the AML/CFT Act.

 

OFFENCES RELATING TO FAILURE TO FULFIL OBLIGATIONS

WHAT can they consist of?

• you do not file a notification with the GIFF on circumstances which may prove money laundering or financing of terrorism
• you fail to notify the GIFF when a reasonable suspicion arises that a transaction or an asset may be related to money laundering or terrorist financing
• you conceal or provide false data to the GIFF regarding transactions, accounts, persons, etc.

WHO can be a perpetrator?

• only persons acting for or on behalf of the OI
• there must be formal authority to act ‘for or on behalf of’, i.e. arising from a contract or resolution of an IO body
• in practice these are most often: a member of the management board, a proxy, an AML Officer

WHAT ARE THE RISKS?

• 3 months to 5 years imprisonment

 

OFFENCE OF DISCLOSURE AND USE OF DATA

WHAT can it consist of?

• the offence concerns the sharing of data with unauthorised persons, account holders or parties to a transaction
• you share information
  • : collected in connection with the monitoring of transactions, however this does not apply to all transactions, but only to cash payments and transfers of amounts exceeding €15,000
  • about detected circumstances that may be evidence of money laundering or terrorist financing – unusual transactions of the client
  • from the
  • perspective of the size of his business
  • that the GIIF requested from you – e.g. about which IP number the client used to connect to the IO

WHAT can it involve?

• you are using data collected through transaction monitoring for purposes other than anti-money laundering and counter-terrorist financing

WHO can be a perpetrator?

• only persons acting for or on behalf of the OI
• there must be formal authority to act ‘for or on behalf of’, i.e. arising from a contract or resolution of an IO body
• in practice these are most often: a member of the board of directors, a proxy, an AML Officer

WHAT ARE THE RISKS?

• 3 months to 5 years imprisonment

 

OFFENCES AGAINST CONTROL ACTIVITIES

WHAT can it consist of?

• thwarting or at least hindering an audit related to the examination of the application of the provisions of the AML/CFT Act in the OI
• applies to inspections carried out by delegated officials from e.g. the General Inspectorate of Financial Information (GIIF), the National Bank of Poland (NBP), the Polish Financial Supervision Authority (PFSA)
• these are all actions affecting the proper course of the control, e.g. failure to provide information requested by the controller, concealing documentation

WHO can be the perpetrator?

• common offence, i.e. anyone who fulfils the elements of the offence and can be held criminally liable
• there is no restriction to persons acting in the name of or on behalf of the IO

WHAT IS AT STAKE?

• fine
• the amount of the fine is calculated in accordance with the daily rate tariff of the Penal Code – which gives a potential penalty of between PLN 100 and even PLN 10,080,000

 

The less you know, the more peacefully you sleep?

Imagine a situation in which you return from holiday and, in the jungle of hundreds of e-mails, you fail to take note of the details of a suspicious transaction forwarded to you by a colleague. Or we miss the deadline for filing a SAR with the competent authority amidst a flurry of duties, dedlays and other high-priority tasks.

After all, we didn’t mean to do anything wrong, but the situation is certainly unpleasant, involving a “floor mat” with a superior, but probably not necessarily putting a cross on us.

Because can so-called inadvertence save us from criminal proceedings for violating the AML/CFT Act?

• Unintentionality – in criminal law, a state in which the perpetrator does not intend to act unlawfully, but by failing to exercise care commits an offence
• A condition for attributing unintentional commission of an offence is to establish – did the offender foresee such a possibility at all? Must it be considered, having regard to the circumstances of the case, that the offender should have foreseen it?

In the case of offences relating to dereliction of duty and disclosure and use of data, committing them unintentionally can also result in a conviction – but with a maximum fine.

Offence	Deliberate	Unintentionality
Failure to comply with obligations
Disclosure of data
Use of data
Thwarting or obstructing an inspection

 

 

What does the Criminal Code say about this? The Criminal Code, in Article 299 § 2 CC, introduces an even stricter criminal liability for employees of obliged institutions.

 

THE CRIME OF ENABLING MONEY LAUNDERING

WHAT can it consist of?

• you accept, transfer or convert means of payment, financial instruments, foreign currencies, securities in violation of
  • the law “in violation of the law” – this refers mainly to the obligations arising from the AML/CFT Act, as well as internal regulations and policies of the IO
  • , for example: you do not properly identify and verify the customer
• You accept means of payment, financial instruments, foreign exchange, securities in suspicious circumstances which may indicate money laundering
  • “suspicious circumstances” – any signals related to a financial operation which justify the establishment of money laundering
  • For example: you accept cash payments in an establishment from a CEO listed in the National Court Register, clearly controlled by a “custodian” present at the activity.
• you provide services which make it possible to conceal the criminal origin of
  • assets

  or which make it difficult to secure

  • assets for example: you register companies in so-called tax havens and organise the transfer of assets in the knowledge of their criminal origin

who can be the perpetrator?

• only persons acting in the name of or on behalf of the OI, in particular a bank or a financial institution
• there must be a formal authority to act “in the name of or on behalf of”, i.e. arising from a contract or resolution of an IO body
• in practice, this is most often the case for those carrying out the FSC: the AML Officer and other compliance officers, as well as those accepting payments from clients

WHAT DOES IT INVOLVE?

• from 6 months to 8 years imprisonment
• from 1 to 10 years imprisonment – when you act with other persons
• from 1 to 10 years imprisonment – when you gain at least 200,000 zlotys of financial benefit from your crime
• from one month to three years imprisonment – when you ‘only’ make preparations for a crime

 

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