Money Laundering                     

 Legal Memorandum 2015:2 Ref. No. ÅM-A 2014/0360, EBM A-2014/0187 The Prosecution Development Centre, Stockholm and The Swedish Economic Crime Authority, May 2015

 

 

Table of contents Summary

 

1  Regulation  

1.1  The administrative Money Laundering Act  

2  Cooperation on the proceeds of crime and the “general clause” of the Public Access to Information and Secrecy Act

 

3  Money laundering offences (Sections 2−6)  

3.1  The property shall derive from an offence or criminal activities  

3.1.1  Offences (Section 2)  

3.1.2  Criminal activities  

3.1.3  Tax offences and other evasion offences  

3.1.4  Offences abroad  

3.2  Money laundering offences with a money laundering purpose (Section 3)

 

3.2.1  Punishable measures  

3.2.2  Self-laundering  

3.2.3  Money laundering purpose  

3.3  Money laundering offences – without a money laundering purpose (Section 4)

 

3.3.1  Improper promotion  

3.4  Grading of offences (Sections 5−6)  

3.4.1  Gross offences  

3.4.2  Money laundering misdemeanours  

4  Commercial money laundering (Section 7)  

4.1  The offence  

4.2  The concept of commercial, etc.  

4.3  Who is subject to liability?  

4.4  Commercial money laundering, gross offence  

4.5  Commercial money laundering, petty offence  

4.6  Measures not taken in the context of business operations/habitually/extensively

 

5  Attempt, preparation and conspiracy (Section 8)  

6  Confiscation (Sections 9−11) and safekeeping under the Stolen Goods Act  

6.1  Confiscation of property that has been the subject of an offence, etc. (Section 9)  

6.1.1  Confiscation when the predicate offence is a tax offence  

6.2  Confiscation of an instrumentality (Section 10)

 

 

6.3  From whom can confiscation be made? (Section 11)  

6.3.1  The risk of double confiscation must be taken into account  

6.4  Safekeeping in the case of commercial money laundering  

7  Seizure of money (Sections 12−13)  

 

Summary  

 On 1 July 2014, the provisions on money receiving and petty money receiving were repealed and replaced by new provisions on various forms of money laundering. Greater opportunities to secure and confiscate property were also introduced at this time. The new provisions were introduced partly through a new act, the Act (2014:307) on penalties for money laundering offences (the Money Laundering Offences Act) and partly through amendments to existing legislation. There is also an administrative framework intended to prevent the use of the financial system for the purposes of money laundering.

 

 This memorandum has been prepared in cooperation between the Swedish Economic Crime Authority and the Prosecution Development Centre, Stockholm.

 

 The main purpose of this memorandum is to provide prosecutors with knowledge and guidance on how to apply the new legislation. The legislation is new, and its preparatory works do not contain “answers” to every question that may be asked. The Prosecution Development Centre, Stockholm and the Swedish Economic Crime Authority do, however, express their views on a series of questions in this memorandum. Where this is done, it is clearly indicated.

 

 The memorandum primarily discusses the Money Laundering Offences Act and the provisions on the prohibition on disposals of property in the Act (2009:62) on measures against money laundering and terrorist financing. Most of the memorandum's content is taken from the bill to the act (Government Bill 2013/14:121 “A more effective criminalisation of money laundering”). Also see SOU 2012:12 and Ministry of Justice memorandum Ju2013/7019/L5. Government Bill 2014/15:94 has proposed amendments that have not yet (May 2015) resulted in legislation. The memorandum discusses the proposed amendments that concern the area of money laundering.

 

 The intention behind the new regulation is to make criminalisation more effective and to enhance opportunities to secure and confiscate laundered property. In brief, the new provisions entail the following:

 

The penalty provisions have been redesigned so as to facilitate application, among other things to make explicit that no concrete predicate offence is necessary.

All types of offence that can give rise to financial proceeds, i.e. including evasion offences and enrichment offences, can be predicate offences to money laundering.

Criminal liability also encompasses those who launder proceeds from their own criminal activities, known as self-laundering. However, provisions on concurrent offences must be observed.

An act that can be deemed both a money laundering offence and money receiving shall, under the provisions on concurrent offences, normally be deemed as a money laundering offence.

Criminal liability also applies to a person who, in the context of business

 

operations or as part of activities that are conducted habitually or otherwise extensively, takes part in measures that can reasonably be assumed to be taken for money laundering purposes (commercial money laundering).

Criminal liability applies to attempt, preparation and conspiracy to commit a non-petty offence.

The Money Laundering Offences Act grants extended powers to confiscated laundered property.

Seizure of money and prohibition on disposals of property yield new opportunities to secure property upon suspicion of money laundering offences and commercial money laundering.

There are no transitional provisions, which means that the new provisions are only applied to acts of money laundering committed after entry into force.

The new provision on money laundering offences is not intended to entail any change to the criminal measures. Older preparatory works and praxis in the area thus remain essentially relevant.

 

 The memorandum does not discuss the penalty provisions for terrorist financing. Neither does it discuss international legal cooperation. In this regard, we refer to the manual on international legal assistance. There is still reason to briefly touch upon a few things relating to international cooperation, and the memorandum mentions these in context.

 

 Work to implement the new legislation in the area has been partly carried out in inter-agency working groups. This inter-agency cooperation has continued and is still ongoing (May 2015) in forms such as training and operational collaboration.

 

 The application of the new provisions will be monitored, and it is therefore of value if information, decisions and judgments, etc. are submitted to the Prosecution Development Centre, Stockholm and the Swedish Economic Crime Authority at intervals. The memorandum will be updated as necessary.

 

1. Regulation  

   

The concept of money laundering has not previously been used in Swedish penal law. Money laundering is commonly understood to signify measures designed to conceal or convert the proceeds of criminal activities.

 

 Provisions on criminal liability for money laundering are found in the Money Laundering Offences Act. Provisions on the seizure of money are found in this act but also in the Act (2002:444) on Criminal Responsibility for the Financing of Particularly Serious Crime in some cases (the Financing Act). This act also contains provisions on penalties for terrorist financing.

 

 The Act (2009:62) on measures against money laundering and terrorist financing, known as the Money Laundering Act, contains an administrative framework intended to prevent the use of the financial system for the purposes of money laundering and terrorist financing (see more below). To avoid confusion between the different acts, the latter act in this memorandum will be designated the administrative Money Laundering Act.

 

 The administrative Money Laundering Act contains the regulation concerning the prohibition on disposals of property. It also contains provisions on criminal liability for those who neglect certain obligations in the act.

 

 When administrating qualified money laundering criminality, it can be good to know something about the administrative Money Laundering Act and which enforcement authorities there are in the area. This is particularly important when administrating commercial money laundering, since this criminality starts out from culpable risk-taking. For this reason, the following gives a summary of the content of the administrative Money Laundering Act.

  

1.1. The administrative Money Laundering Act  

 The provisions of the administrative Money Laundering Act aim to counteract the potential to undertake money laundering and terrorist financing activities and to prevent financial operations and other business operations from being used for the purposes of money laundering and terrorist financing.

 

 The act encompasses operators such as banks and other financial institutes. It also encompasses companies and operators outside the financial sector, such as estate agents, public accountants, lawyers, tax advisers and companies that assist in the formation of companies and provide offices and postal addresses. Furthermore, the act covers casinos and all companies that sell goods for more than EUR 15,000 in cash.

 

The act is based on a risk-based approach. It includes requirements for operators to undertake risk-based customer due diligence before establishing a business relationship or performing an occasional transaction above a certain threshold amount (but upon suspicion of money laundering, measures are to be taken regardless of threshold amount). Documents forming the basis of customer due diligence are to be retained. Operators are also to review transactions in order to detect those they suspect, or have reasonable grounds to suspect, of constituting a part of money laundering or terrorist financing. If, after closer analysis, this suspicion remains, details of all circumstances that could indicate money laundering are to be submitted to the Swedish Police Authority without delay (money laundering report). Operators may not disclose to the customer or any third party that a review has been carried out or that details have been submitted (prohibition of disclosure). The main rule is that operators are to refrain from performing suspicious transactions.

 

 Operators are also to have risk-based procedures to prevent their operations from being used for money laundering or terrorist financing and to ensure that their employees receive the information and training needed.

 

 The enforcement authorities over the operators encompassed by the administrative Money Laundering Act are Finansinspektionen (Sweden's financial supervisory authority), the Swedish Estate Agents Inspectorate, the Swedish Gambling Authority, the Supervisory Board of Public Accountants, the Swedish Bar Association and the County Administrative Boards of Stockholm, Västra Götaland and Skåne.

 

 The act also contains provisions on the prohibition on disposals of property, see below under Section 8. Chapter 7, Section 1 also has a provision on liability for those who intentionally or by gross carelessness neglect their obligations to conduct reviews or provide information or violate the prohibition of disclosure.

   

 

 

2. Cooperation on the proceeds of crime and the “general clause” of the Public Access to Information and Secrecy Act

  

 An important part of fighting crime is to deprive criminals of the proceeds of crime. This is also true in the case of money laundering criminality. This can involve confiscation of the proceeds of crime, measures under the money laundering offences legislation and extended confiscation of the proceeds of criminal activities. It can also involve the imposition of duty or tax. It might also be a question of informing other authorities that assets have been found during a criminal investigation in order that the Swedish Enforcement Authority, for example, can take measures to recover unpaid debts.

 

 One of the protection interests behind the criminalisation of money laundering is to counteract the entrance and circulation of the proceeds of crime in the financial systems. Getting at the proceeds of crime is thus a major element of fighting crime, regardless of whether this is done using the legal tools available to prosecutors or whether such tools are found at other authorities. The exchange of information is one of the prerequisites for effective cooperation between authorities and thus for getting at the proceeds of crime.

 

 Secrecy applies not only to individuals but also between authorities. However, there is opportunity to break secrecy by applying provisions overriding secrecy. For the most part, information is exchanged between authorities through applying the provision of Chapter 10, Section 27 of the Public Access to Information and Secrecy Act, the “general clause”. This provision states that secrecy does not prevent information from being from submitted from one authority to another if it is manifest that the interest of information being submitted has priority over the interest secrecy is to protect.

 

 Cases can reveal information that a suspect has debts but is attempting to conceal his assets by, for example, having other persons serve as the owner, or that unreported income of a not insignificant value is in other ways being kept unknown to the authorities. In these situations, a consideration under the general clause can lead to the possibility of submitting information on assets, e.g. upon the rescinding of a seizure or a seizure of money, to the Swedish Enforcement Authority.

 

 The Parliamentary Ombudsman has issued a statement with regard to the application of the general clause. See, inter alia, decisions 14/06/2013 (Ref. no. 2187-2012) and 02/04/2014 (Ref. no. 584-2013 and 666- 2013). Also see the Swedish Prosecution Authority's Confiscation Manual and Legal Memorandum 2012:4.

 

3. Money laundering offences (Sections 2−6)

  

 The section references made under this heading relate to the Money Laundering Offences Act.

 

 

In order for an act to constitute a money laundering offence, the property shall derive from an offence or criminal activities.

 

All types of offence that can generate financial proceeds can constitute a predicate offence to punishable money laundering, i.e. also evasion offences and enrichment offences.

 

The money laundering offence encompasses measures taken by the person who has committed the predicate offence, i.e. self-laundering is criminalised. However, provisions on concurrent offences must be observed.

 

Criminal liability pursuant to Section 3 requires the measure to have a money laundering purpose, i.e. that the measure aims to conceal the property's origin or to promote appropriation of the property or its value.

 

Acts that improperly promote the possibility of someone converting property deriving from an offence or criminal activities are made punishable by Section 4 even if no money laundering purpose exists.

 

Gross offences are regulated in Section 5, and Section 6 prescribes the liability for petty offences and for carelessness offences (money laundering misdemeanour).

    

3.1. The property shall derive from an offence or criminal activities

 Money laundering is commonly understood to signify measures designed to conceal or convert the proceeds of criminal activities. Thus, in order for an act to constitute a money laundering offence there shall exist a predicate offence that has given rise to financial proceeds. Money laundering entails someone taking measures with the proceeds of crime for a particular purpose. If the measures are taken before the predicate offence has been completed, it can instead be a case of punishable participation in the predicate offence.

 

 With money laundering, there must be a link between the predicate offence and the property laundered. This link is expressed in a way such that the property is to “derive from” an offence or criminal activities. That the property is to “derive from” means that also such as has replaced the original proceeds of crime can be the subject of money laundering. The property can in principle be converted for an unlimited number of stages, but after a few stages, it generally becomes difficult to demonstrate the link between the property and the original criminality. This is not a change in relation to the previous regulation in the area.

 

3.1.1. Offences (Section 2)  

“Offence” means an act that is an offence under Swedish law or an act that is an offence under foreign law and that is equivalent to an offence under Swedish law.

 

 All types of offence that can give rise to financial proceeds can constitute a predicate offence to punishable money laundering. This means that not only offences involving alienation or acquisition can constitute a valid predicate offence to money laundering. Also offences by which someone is enriched as a result of a tax/customs offence or other evasion offence are encompassed by the term “property deriving from an offence or criminal activities” and can thus be a predicate offence to money laundering.

 

 The action is to satisfy the requisite of a crime description and also the requirement of intent or carelessness. However, it is not necessary to demonstrate more detailed circumstances such as time, place, proceeds of crime or perpetrator. It is thus not necessary to demonstrate from which concrete predicate offence a particular property derives, but it is sufficient to prove that the property derives from an offence in a more indefinite sense.

 

 Payment that someone has received for carrying out an offence can also be the subject of money laundering.

 

 NJA 2005 p. 833 has viewed it possible for false certification made for a consideration to constitute a predicate offence to money receiving.

 

 3.1.2. Criminal activities

 

The act gives no definition of “criminal activities”. However, its meaning requires an offence as defined in Section 2.1 Through the new broader requisite of “criminal activities”, the preparatory works make clear that it is not necessary to be able to demonstrate that the property derives from a particular concrete offence. A prosecutor is to be able to point to concrete circumstances indicating criminal activities of a particular type, such as economic crime or narcotics crime. Details on their extent and focus do not need to be supported. The requisite is satisfied even if it cannot be demonstrated that any more specified acts have taken place.

 

 One intention of this broader requisite is to facilitate the production of evidence, particularly in situations where funds are mixed together from multiple, and above all different, types of criminal acts that have occurred over time.

 

 The legislation on extended confiscation in Chapter 36, Section 1b of the Swedish Penal Code (BrB) also uses the expression “criminal activities”. This states that the expression does not require knowledge of specific acts, but that it refers to a certain type of criminality that does not need to be further specified with regard to extent or details, and which implies an offence of some significance.

                                                            1 Government Bill 2013/14:121 p. 108.

 

This rules out finable offences and other offences with a low penalty scale.2 A reasonable starting point was stated to be that only offences where the penalty scale includes more than one year in prison should be able to counted as a part of criminal activities. These statements can be used as a guide also when assessing whether criminal activities in the sense of the Money Laundering Offences Act are in view.

 

 It is important to point out that in the context of money laundering it is not a question of a lower evidence requirement as in the case of extended confiscation, but the requisite of “criminal activities” in the Money Laundering Offences Act is a crime requisite that must be supported.

 

 “Activities” should be understood as criminality on a single occasion, multiple offences over a fairly continuous period, but also occasional offences in the context of activities undertaken in more or less organised forms. As an example of the latter, the Government Bill mentions criminality occurring within certain motorcycle clubs and other criminal networks.

 

 3.1.3. Tax offences and other evasion offences

 

In the case of tax offences and other evasion offences, such as customs offences, it is not possible to trace the financial proceeds generated by the offence to any particular part of the perpetrator's wealth. The enrichment instead corresponds to an estimated value. This does not decisively differ from other situations in which the proceeds of crime, or what has replaced the proceeds of crime, have been mixed with the suspect's property.

 

 In the case of tax offences, it is required as previously that the effect of the predicate offence has occurred, i.e. that an increase in wealth has actually taken place. Thus, it is only when the procedure has led to taxpayers being charged too low tax or duty that they can be said to have enriched themselves.3

 

 3.1.4. Offences abroad

 

A predicate offence to money laundering also refers to an act that is an offence under foreign law if the offence is equivalent to an offence under Swedish law. Thus, an offence committed abroad and that would have been a Swedish offence if the act had been committed in Sweden or against a Swedish interest, can also constitute a predicate offence to punishable money laundering. For example, a tax offence abroad could be a Swedish tax offence if the act concerned Swedish tax and information to a Swedish authority. The question of whether Sweden has jurisdiction over a certain act pursuant to Chapter 2 BrB is thus not relevant in this context.  

   

                                                            2 Ds 2006:17, Utvidgat förverkande m.m. [Extended confiscation, etc.], p. 99. 3 See Government Bill 1998/99:19 p. 71.

 

Criminal activities abroad can also constitute a predicate offence to money laundering.   

3.2. Money laundering offences – with a money laundering purpose (Section 3)

 

 Liability for a money laundering offence under Section 3 requires a measure of some kind and that the measure is taken for money laundering purposes. The measure shall also relate to property deriving from an offence or criminal activities.

 

 3.2.1. Punishable measures

 

The new provision on money laundering offences is not intended to entail any change to the criminal area beyond criminalisation of self-laundering, but the intention is to make the provision explicit and to somewhat extend the possibility to prove the link to predicate offences. Older preparatory works and praxis in the area thus remain essentially relevant.

 

 The criminalised measures are divided into two groups. One requires some form of dealing with the property (first point), and the other relates to situations involving the creation of a reasonable, but false explanation for the increase in wealth, but not involving an action that entails taking measures with the property (second point).

 

 The list of punishable measures is not exhaustive. The measures are to be of the type mentioned in the points or a comparable measure.

 

 If a person has previously been convicted of a predicate offence and the sentence includes a confiscation order that has been enforced, there are no remaining proceeds that can be the subject of money laundering measures. However, if the confiscation has not been enforced, there is scope for a perpetrator to take money laundering measures with the proceeds from the predicate offence. The case of self-laundering must observe issues of concurrent offences, and confiscation of the proceeds of crime must take into account the risk of double confiscation.

 

 The first point The first point describes the measures that require some form of dealing with property deriving from an offence or criminal activities. The text of the act states the examples where a perpetrator transfers, acquires, converts, stores or takes another such measure with the property. It can thus be a matter of physical dealing, e.g. that property is received so as to ensure that it is stored in a place where it cannot be detected. Possessing property can be covered by both storing and acquiring. Also covered are measures entailing someone disposing over property without physically dealing with it. Making an electronic transfer of money, permitting deposit into a bank account or allowing storage in a safe deposit box or the like could thus constitute activities subject to this provision.

 

  

“Takes another such measure” may be considered to contain a requirement for some form of active behaviour on the part of the perpetrator. The preparatory works give the examples of making a bank account available by communicating by an account number, of permitting a third party to use a particular secure space, of moving property purely physically or moving assets by transferring them between different accounts, or the like, in ways that reduce the risks of the property's origin being revealed. Using the property, converting it and pawning it are further examples of measures that the provision has in view. Another example given in connection with previous regulation, and which in our view should probably continue to be a punishable measure, is the referral of hiding places for the property.

 

 When the property is acquired, it is not necessary for the property to have been handed over and come into the purchaser's possession, but acquisition should be regarded as completed when a purchase agreement has been entered. The equivalent should apply in the case of other transactions where agreement and completion are separate.

 

 Under certain conditions, it should be possible to view failure to discontinue storage or possession as a storage measure such as is covered by the provision (compare NJA 2003 p. 254).

 

 The second point The second point states procedures that aim to create a reasonable, but false explanation for an increase in wealth that has arisen through an offence or criminal activities. The text of the act mentions the examples where a perpetrator supplies, acquires or draws up a document that can provide a seeming explanation for the possession of the property, participates in transactions that are carried out for the sake of appearances, acts as a front or takes another such measure.

 

 Examples of procedures might be to draw up or participate in drawing up a false promissory note indicating that someone has taken a loan and to buy or sell a winnings chit, cheque or the like. Other examples are to certify or attest information or documentation, to lend identity documents in connection with, e.g. a purchase, to act as a front or draw up invoices which give the impression that the income of business operations has a legitimate origin. Also covered is making oneself available as a front in order to, e.g. conceal the actual ownership structure. Thus, allowing oneself to be registered as the owner of a vehicle which is actually owned by another person can be covered by the provision. Similarly, consultation on how property should be managed in order to launder it can also be a measure covered by the provision. A person stating that he or she has for some reason given money to the suspect and so explain the suspect's increased wealth should in our view probably be a further example.

 

 

For it to be a case of “another such measure”, it is necessary that this concerns measures that typically entail greater difficulty in clarifying the property's origin or ownership structure.

 

 The provision also encompasses the use of electronic documents.

 

 Tax offences and other evasion offences The financial proceeds generated by a tax offence, for example, primarily arise through perpetrators retaining a larger part of their income or wealth than would have been the case if the offence had not been committed. Another way to express this is that the perpetrator (of the tax offence) becomes richer through the offence than he or she would have been in the event of correct taxation. Since the funds that become the subject of evasion offences are normally acquired lawfully, it should according to the preparatory works be relevant in the first instance to apply money laundering liability pursuant to the second point.

 

 A situation where liability pursuant to the first point could be relevant is if someone conveys assets from Sweden to a country where Swedish authorities do not have any opportunity to check the property.

 

 3.2.2. Self-laundering

 

The new legislation criminalises self-laundering. It does so by stating that the act is intended to conceal or to promote the possibility of someone appropriating the property or its value. By “someone” is meant anyone at all, i.e. also those who launder proceeds from their own criminality.

 

 Criminal liability in Section 3 is limited by the fact that there is to be a money laundering purpose. For this reason, legal proceedings pursuant to Section 3 cannot be brought against pure consumption of the proceeds of crime without a money laundering purpose. However, even without a money laundering purpose, a person can under certain conditions be held responsible for money laundering offences pursuant to Section 4.

 

 Concurrent offences in self-laundering

General principles of concurrent offences are to be applied. A money laundering offence in the form of self-laundering should as a main rule be considered consumed by and co-penalised with the predicate offence that gave rise to the proceeds. Under special conditions, there can be a conviction for concurrent offences, i.e. liability both for the predicate offence and the money laundering offence. (See more about concurrent offences in Section 9.1 below).

 

 Even if the money laundering offence is consumed by the predicate offence, the subsequent money laundering measure can sometimes be of significance in assessing the penal value of the predicate offence. In assessing penal value, the aggravating circumstance of Chapter 29, Section 2, point 6 BrB shall be given special consideration, which includes whether the offence has been preceded by especially careful planning. Subsequent money laundering measures in order to appropriate the proceeds of crime

 

could be considered to be especially careful planning of this kind. 3.2.3. Money laundering purpose

 

Criminal liability in Section 3 is limited to the measure having a money laundering purpose, i.e. the measure shall be intended to conceal that the property derives from an offence/criminal activities or to promote the possibility of someone appropriating the property or its value. Appropriation thus does not have to concern the particular property that can be traced to the predicate offence.

 

 The money laundering purpose is linked to the measure and not to the perpetrator. This means that it is sufficient for someone, such as the person who initiates the measure, to have this purpose. For the perpetrator, i.e. the person who takes the money laundering measure, it is sufficient that he or she has intent in relation to the fact that some other participant has that intention for the measure. If, with the purpose of concealing the origin of money, a person who has earned that money on illegal activities asks someone else to receive the money in his account, the person receiving the funds in his account becomes guilty of a money laundering offence even if he himself does not have the purpose of concealing the money's origin. However, he must have intent in relation to his client's having such a purpose for the act. His own purpose might, on the other hand, be different, e.g. to obtain payment.

 

 The person who, without a money laundering purpose, improperly promotes the conversion of property deriving from an offence or criminal activities can be convicted of a money laundering offence pursuant to Section 4.

  

3.3. Money laundering offences – without a money laundering purpose (Section 4)

 

 There are cases of the proceeds of crime going to various forms of consumption and where the purpose is not strictly speaking the laundering of property. The person who has committed an offence and uses the financial proceeds to buy a building, for example, not in order to conceal their origin but only to acquire an extravagant home, cannot be penalised under Section 3. Neither transferring nor receiving the funds can constitute a money laundering offence as no money laundering purpose exists or can be demonstrated.

 

 Section 4 prescribes criminal liability where no money laundering purpose exists, for acts that actually and improperly promote the possibility of someone converting money or other property deriving from an offence or criminal activities.

 

 The provision primarily captures procedures which tangibly facilitate the conversion of property that is difficult to convert. Some examples might be large quantities of cash deriving from procuring, but also jewellery or art received as payment for narcotics.

 

  

The provision captures the situation of business operators receiving a large sum of cash as payment for goods, even though they at least have intent of indifference in relation to the fact that the money comes from criminal activities and to the circumstances that make the promotion improper.

 

 There might be situations where the act can also be covered by the main rule in Section 3 as there can often be a purpose, at least underlying, to conceal or promote someone's appropriation. The main rule in Section 3 is then to be applied in the first instance.

 

 In light of the fact that the legislator has, among other things, used the same choice of word in Section 4 as in Section 3 − promote the possibility of someone – it may be considered that the person who has committed the predicate offence can be held responsible pursuant to Section 4. Here too, issues of concurrent offences must be observed.

 

 3.3.1. Improper promotion

 

Not every act of promotion is punishable under Section 4 of the Money Laundering Offences Act, but it requires the promotion to be improper. The assessment of improperness is to take into account all the circumstances of the transaction and what might be considered normal in the context.

 

 Criminalisation is primarily intended for procedures that tangibly improve the possibility of converting something that is not easy to convert, such as precious stones, art or large quantities of cash. It is not intended to capture customary transactions, such as the receipt of funds that are in an account, nor cash funds that do not amount to higher sums than are generally received in trade. Custom and praxis are to be taken into account. However, the mere fact that a particular type of transaction occurs does not make it improper. The threshold for when it is a case of improper promotion should, according to the preparatory works, be relatively high, especially where customary means of payment, such as cash, are involved.

 

 The preparatory works contain no further guidance on when the action is improper. However, in our view, it should still be possible for guidance to be provided by what earlier preparatory works have said about the requisite of improperness in the case of

money receiving. Among other things, these preparatory works state the following.

Improper promotion can exist if the transaction has gone beyond what is customary and entailed that someone has gained a special possibility of appropriating something that derives from criminal activities. Mainly in view are procedures that have the more or less stated purpose of helping a criminal to take advantage of his acquisition. The value of the property the translation concerns is of significance. A substantial amount generally means that the procedure is to be seen as improper, but the amount is not always decisive. There shall also be a particular connection between the transaction and the circumstance of an offence having been committed. Receiving payment for

 

 

a valid and overdue claim is not seen as improper, even where this involves a larger sum and the person receiving the payment is aware that the other party is guilty of an offence. The fact that the transaction has been effected is then not normally associated with the circumstance of an offence having been committed.4

  

3.4. Grading of offences (Sections 5−6)  

 3.4.1. Gross offences

 

Gross money laundering offences are regulated in Section 5. The second paragraph gives examples of criteria that shall be paid particular attention when judging whether the offence is gross. Particular attention shall be paid to whether the act has concerned objects of substantial value, whether the measures have been part of criminal activities that have been conducted systematically or extensively, or whether they have otherwise been of a particularly dangerous nature. The list is not exhaustive, but only gives examples. Other circumstances to take into account might be if the offence has been part of activities undertaken in an organised form or been preceded by especially careful planning. All circumstances are to be assessed in order to determine whether the act is to be deemed gross.

 

 The examples listed in the text of the act largely correspond to those previously stated to be of significance in assessing whether a money receiving offence was to be deemed gross.5 The Money Laundering Offences Act also states, however, that attention shall be paid to measures that have otherwise been of a particularly dangerous nature.

 

 As regards substantial value, the preparatory works state that where the predicate offence is a crime against property, the money laundering offence should be required in any case to follow the boundary that applies when the predicate offence is to be deemed gross. This means that a money laundering offence is often to be deemed a gross offence if the predicate offence's value corresponds to five times the basic amount.6 The statement is not applicable to all types of predicate offence. In the case of a narcotics offence, narcotics of a contextually low value can be considered gross without there being reason on that basis alone for deeming the money laundering offence gross. Furthermore, it should be possible for a money laundering act concerning the proceeds of a tax offence to be considered gross even if the tax offence is not deemed gross since the monetary limit for gross tax offences is significantly higher than that for gross crimes against property.

 

 The fact that a particular method is repeated several times, by one or several persons in collusion, can be deemed systematic is no change in relation to previously (see Chapter 29, Section 2, point 6 BrB).

  

                                                            4  Government Bill 1998/99:19 p. 31 and Government Bill 1990/91:127 p. 54. 5 Government Bill 1990/91:127 p. 56 and Government Bill 1998/99:19 p. 71f. 6 See, inter alia, NJA 2013 p. 654 (gross receiving). The boundary is not absolute but applies only if there are no aggravating or mitigating circumstances that should affect assessment of the offence's gravity. 

 

  

An act can be of a particularly dangerous nature, e.g. when someone who has a special position of trust has taken advantage of this to commit crime, or that someone without having a position of trust has taken advantage of his employment with an operator to perform money laundering measures. Also those who perform money laundering measures through using such persons can be convicted of a gross offence. The preparatory works also give the example of someone exploiting loopholes in the system that, according to the administrative Money Laundering Act, shall exist in order to prevent money laundering.

 

 3.4.2. Money laundering misdemeanours

 

Petty offences (Section 6, first paragraph) A circumstance that can make an offence under Section 3 or Section 4 petty, and which should be deemed a money laundering misdemeanour, is whether the act has related to property of low value. The preparatory works also state that the penalty scale for petty offences should be applied in situations where the offence has a lower penalty scale than the penalty that can be awarded to the normal case of money laundering offence, i.e. imprisonment for at most two years. This is only an indication of classification. All circumstances are to be taken into account.

 

 Carelessness offences (Section 6, second paragraph) A person is also guilty of a money laundering misdemeanour if he or she did not realise but had reasonable cause to assume that the property derived from an offence or criminal activities. These acts of carelessness under Section 6, second paragraph refer to money laundering offences under Sections 3 and 4.

 

 This requires the perpetrator to have been careless in relation to the circumstance that the property derives from an offence or criminal activities. Among other things, the assessment should take into account the circumstances in which the action was undertaken, what was known about the party with whom the business relationship was being entered, and which kind of transaction was involved. Sham transactions and the sale of winnings chits should give rise to suspicion just as in cases where someone acts anonymously or where the identity is unclear. This has further significance in cases of unusual or extensive transaction patterns or where the transaction manifestly lacks a legitimate financial purpose. This is no different from what previously applied with regard to petty money receiving.7

 

 The provision is to be differentiated from commercial money laundering, petty offence, for which criminal liability applies to those who, in cases other than business operations, etc. take part in measures that can reasonably be assumed to be taken for money laundering purposes.

     

                                                            7 Government Bill 1998/99:19 p. 32f 

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4. Commercial money laundering (Section 7)

 

   

The section references made under this heading relate to the Money Laundering Offences Act.

  

Culpable risk-taking is made punishable as commercial money laundering primarily in the context of business operations or as part of activities that are conducted habitually or otherwise extensively.

 

Culpable risk-taking in cases other than business operations, etc. is made punishable as commercial money laundering, petty offence.

 

Gross offences are regulated in Section 7, second paragraph, and Section 7, third paragraph prescribes the liability for offences that are petty.

The property does not need to derive from an offence or criminal activities. The

provision is subsidiary in relation to the provisions of Sections 3−6.  

  

4.1. The offence  

 It has been considered urgent to counteract activities that allow themselves to be used for the purposes of money laundering. For this reason, measures are made punishable as commercial money laundering where someone, in the context of business operations or as part of activities that are conducted habitually or otherwise extensively, takes part in measures that can reasonably be assumed to be taken for money laundering purposes. Also penalised are those who, in cases other than business operations, etc. take part in measures that can reasonably be assumed to be taken for money laundering purposes (Section 7, third paragraph).

 

 This provision is modelled on the previous provisions on commercial receiving (Chapter 9,Section 6, second paragraph BrB) and petty receiving (Chapter 9, Section 7, second paragraph, point 1 BrB). The aim includes being able to intervene in the event of money laundering even when it cannot be demonstrated where the property comes from and/or a money laundering purpose cannot be demonstrated.

 

 The provision is subsidiary in relation to the provisions of Sections 3−68

 

 The punishable act is described as taking part in measures that can reasonably be assumed to be taken for money laundering purposes. This refers to the perpetrator participating or taking a position on a measure, such as a transaction, which for good reason can be assumed to be taken for money laundering purposes. It thus does not need to be demonstrated that the measure has been taken for money laundering purposes.

 

                                                            8 Government Bill 2013/14:121 p. 116. 

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The property also does not need to derive from an offence or criminal activities. The basis for criminal liability is instead that the perpetrator becomes guilty of culpable risk-taking. The fact that property later proves to be legitimate does not diminish the culpable risk-taking and therefore does not exempt from liability. This is different to what applies to the offence of receiving without a proven predicate offence, where in a corresponding situation it is not considered possible to demand criminal liability.

 

 It is not strictly speaking a question of a lower evidence requirement regarding the predicate offence, but of criminalising a measure in a situation where the action must be considered to entail culpable risk-taking. It is also not a question of criminalising carelessness, but of the intent to participate in transactions that based on external circumstances are to be deemed suspicious and should therefore not be undertaken. It is not necessary for perpetrators themselves to have made the assessment that the measure in question can reasonably be assumed to be taken for money laundering purposes, but the circumstances on which this assessment is based must be covered by their intent. Criminal liability applies to those who realise that the circumstances surrounding a measure or transaction are such that they objectively suggest that the measure is being taken for the purpose of laundering money, but who nevertheless participate in performing it.

 

 The circumstances surrounding the act are of greater significance in commercial money laundering than in commercial receiving, where the property as such can show signs of being stolen goods for example. Since a money transaction cannot normally in itself be considered to be something suspicious, some qualified circumstance should as a rule exist if the transaction can reasonably be assumed to be taken for money laundering purposes. Such a circumstance might be the way in which transactions are performed.

 

 Criminal liability for commercial money laundering shall not apply where, in accordance with the provisions of the administrative Money Laundering Act, it is legitimate for operators to perform the transaction even though it is suspicious.

 

 Where punishable failure of operators to fulfil their obligations under the administrative Money Laundering Act coincides with liability for commercial money laundering, there shall in accordance with the provisions on concurrent offences only be a conviction for commercial money laundering.

  

4.2. The concept of commercial, etc.  

 Just as in the case of commercial receiving, the concept of commercial is to be understood in a broad sense. The preparatory works to the provision on commercial receiving state that the concept encompasses every activity of a financial nature that is operated professionally by a natural or legal person. Every acquisition or receipt taking place during the exercise of business operations can form a basis of liability even if this is only a question of occasional cases.

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Criminal liability also exists if the measure has taken place habitually, i.e. that it is in principle a matter of multiple cases. “Habitually” does not require all dealings to have been of the same character. As with commercial receiving, each case is to be treated as a particular offence.

  

4.3. Who is subject to liability?  

 In the first instance, it is the person(s) who in the individual case take a position on and thereby participate in a particular measure who can be held responsible. In addition to this, the person who has instigated or promoted the act by means of advice and deed is convicted for instigation or complicity under the Swedish Penal Code. This means, for example, that there is the possibility of finding a person responsible for having, in a senior operational position, created procedures that aim to facilitate money laundering.

 

 It should be noted that the operator can under certain conditions be imposed with a corporate fine.

  

4.4. Commercial money laundering, gross offence  

 For a commercial money laundering offence that is deemed gross, there is a particular penalty scale in Section 7, second paragraph of the Money Laundering Offences Act. This does not give any examples of what shall be paid particular attention when judging whether the offence is gross. According to the preparatory works, guidance may be drawn from the circumstances that shall be paid particular attention when judging whether a money laundering offence is gross.

  

4.5. Commercial money laundering, petty offence  

 According to the preparatory works, it should normally be possible for an occasional transaction not involving any higher amount to be deemed a petty offence.

  

4.6. Measures not taken in the context of business operations/habitually/extensively

 Under Section 7, third paragraph, those guilty of culpable risk-taking in cases other than business operations, etc. can also be convicted of commercial money laundering, petty offence. Thus, even though the offence is designated commercial money laundering, the offence also encompasses acts committed in other contexts. The provision corresponds to the previous provision on petty receiving in Chapter 9, Section 7, second paragraph, point 1 BrB.

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The provision is to be differentiated from money laundering misdemeanour in Section 6, second paragraph, for which criminal liability applies to those who did not realise but had reasonable cause to assume that the property derived from an offence or criminal activities.

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5. Attempt, preparation and conspiracy (Section 8)

  

 The attempt, preparation and conspiracy to commit a money laundering offence, a gross money laundering offence and non-petty commercial money laundering are punishable. Attempt, preparation and conspiracy have previously been punishable offences only in the case of gross money receiving.

 

 The statements made in connection with the criminalisation of accessory forms of criminal behaviour in relation to, inter alia, gross money receiving also provide guidance with regard to the criminalisation of precursors to money laundering offences and commercial money laundering.9 Among other things, the following is made clear by these statements. Undertaking or offering to produce winnings chits for those who want to conceal that they have enriched themselves through an offence should constitute conspiracy to commit a money laundering offence. Similarly, it should be regarded as conspiracy to offer to make a bank account and identity documents available to someone who through various types of transactions wants to convert property deriving from an offence. According to the older preparatory works, the point of attempt should be reached when a perpetrator instructs his bank to perform a particular transaction (which if completed would constitute a money laundering offence). Likewise, according to the preparatory works, the point of attempt should be reached when someone intending to convey money out of the country in a way that constitutes a money laundering offence is caught at an airport or ferry terminal.

                        

                                                            9 Government Bill 2000/01:133 p. 33. 

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6. Confiscation (Sections 9−11) and safekeeping under the Stolen Goods Act

   

The section references made under this heading relate to the Money Laundering Offences Act.

 

 

Provisions on confiscation are found in Sections 9-11 of the Money Laundering Offences Act.

 

Money or other property that has been the subject of commercial money laundering cannot be confiscated but is to be taken into safekeeping pursuant to the Act (1974:1065) on Certain Stolen Goods etc.

 

Confiscation can be made in relation to money launderers even if they do not own the property. However, the risk of double confiscation must be taken into account.

 Proceeds from tax offences should only be confiscated in exceptional cases.

   

This section deals with confiscation under the Money Laundering Offences Act and safekeeping under the Act (1974:1065) on Certain Stolen Goods etc. (the Stolen Goods Act). Normally, the provisions on confiscation at the time of the predicate offence will be applied. It should be noted that it might also be relevant to use the provision on the extended confiscation of proceeds of criminal activities or to allow another authority to take care of the property following an application of the “general clause” in Chapter 10, Section 27 of the Public Access to Information and Secrecy Act.

 

   

6.1. Confiscation of property that has been the subject of an offence, etc. (Section 9)

 Property that has been the subject of an offence under the Money Laundering Offences Act does not constitute proceeds of the money laundering offence but the proceeds of a predicate offence. In order to ensure that such property can be confiscated directly from the money launderer and not only from the perpetrator of the predicate offence, the confiscation provisions in Chapter 36 BrB have been supplemented (see Section 6.3).

Money or other property that has been the subject of an offence under Section 3, 4, 5 or 6 or the value of such property shall be confiscated unless it is manifestly unreasonable. The same applies to the proceeds of an offence under the Money Laundering Offences Act and anything a person has received in payment for costs incurred in conjunction with an offence under the Money Laundering Offences Act or the value of such receipts,

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provided that such receipt constitutes an offence under the Money Laundering Offences Act

 

The property can also be confiscated in cases where the property has been the subject of attempt, preparation or conspiracy to commit a money laundering offence or gross money laundering offence. The preparatory works give the example of a situation in which someone possessing the property asks for a transaction to be performed by a bank, but is denied the transaction by the bank.

 

 It should be particularly noted that the confiscation provision does not apply to property that has been the subject of commercial money laundering or of attempt, preparation or conspiracy to commit commercial money laundering. Information that property that has been the subject of commercial money laundering can be taken into safekeeping pursuant to the Stolen Goods Act is set out in Section 9, second paragraph of the Money Laundering Offences Act. Confiscation in the case of commercial money laundering can, however, be made of the proceeds of an offence under the Money Laundering Offences Act and anything a person has received in payment for costs incurred in conjunction with such an offence.

 

 Confiscation may only be made if this is not manifestly unreasonable. According to the preparatory works, this assessment is to take into account the value that the property has in relation to the offence's penal value and the financial situation of the person who has committed the offence. In our view, the latter part of this statement can seem somewhat strange, especially if the comparison is made, for example, with the provisions on extended confiscation.10 Also of significance to the assessment is whether it is matter of an offence with intent or an offence committed through carelessness. For carelessness offences, it should be possible to dispense with confiscation in more cases than for offences with intent.11

 

 The assessment of proportionality should pay particular attention to whether the property belongs to a person other than the one convicted of a money laundering offence or to whether it is uncertain who the owner of the property is. Often, the laundered property might have been handed over to the perpetrator in order for it to be laundered. The property does not then belong to the perpetrator and it is not intended to go to the perpetrator after the money laundering is completed. In order to avoid double confiscation and unreasonable results, the proceeds of the predicate offence that have been the subject of a money laundering offence should in the first instance be confiscated or neutralised from the person who has committed the predicate offence.

 

 It should generally be the case that it should be possible to dispense with or adjust confiscation if this appears excessively burdensome in light of the offence.

 

                                                            10 See what applies under Chapter 36, Section 1b BrB according to which confiscation may not be made if this is unreasonable. The preparatory works to extended confiscation give examples of circumstances that are of significance in the assessment, see Government Bill 2007/08:68 p. 97. However, they do not mention that the suspect's financial situation is to be taken into account. 11 Government Bill 1999/2000:124 p. 152. 

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6.1.1. Confiscation when the predicate offence is a tax offence  

Confiscation cannot be made of the proceeds of a tax offence, see Section 13a of the Tax Offences Act (1971:69). An exceptions applies to the proceeds of preparation for a gross tax offence or anything then received in payment for costs incurred. This is because the proceeds of a tax offence are normally neutralised during the tax procedure, usually through taxation taking place.

 

 However, the provisions of the Money Laundering Act enable confiscation of the proceeds of a tax offence that have been the subject of a money laundering offence from the money launderer. Here too, the main rule should be that the proceeds from a tax offence that have been the subject of a money laundering offence are in the first instance to be neutralised from the person who has committed the predicate offence, i.e. the tax offence. In the case of self-laundering, this means that confiscation shall not be made of the property that has been the subject of the money laundering offence, but that the proceeds of the tax offence shall instead be neutralised during the tax procedure. When someone else is guilty of a money laundering offence, there is – in light of the opportunity also to confiscate property from the money launderer – a risk that the taxpayer loses the proceeds of the tax offence twice. In such situations, it may normally be considered manifestly unreasonable to confiscate the money from the person who laundered it. It is first if tax liability is not imposed on the taxpayer that the proceeds from the tax offence, i.e. the property that has been the subject of the money laundering offence, should instead be able to be confiscated from the money launderer.

  

6.2. Confiscation of an instrumentality (Section 10)  

 Also property that has been used as an instrumentality in an offence may be confiscated if needed in order to prevent crime or if there are other special reasons. This also applies to property intended for use as an instrumentality in an offence under the Money Laundering Offences Act if the offence has been performed or if the procedure has constituted a punishable attempt or a punishable preparation or conspiracy. The value of such property may be confiscated instead of the property itself.

 

 For example, a list of accounts with account numbers and account operators that shall be or has been used for transfers of money of a criminal origin in order to conceal where it comes from might be considered an instrumentality. Another example of instrumentality according to the preparatory works could be a detailed criminal plan in writing or a list of persons willing to lend their accounts for placing proceeds of crime.

  

6.3. From whom can confiscation be made? (Section 11)  

 Confiscation of property or its value may be made from the perpetrator or another person who has participated in the offence; a person on whose behalf the perpetrator or another person who has participated in the offence acted; a person who has profited from the offence or a business operator referred to in Chapter 36, Section 4 BrB. Confiscation may also be made from a person

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who has acquired the property subsequent to the offence through the division of joint marital property or through inheritance, will or gift, or in some other way, while knowing or having reasonable cause to assume that the property was connected with the offence.

 

 In accordance with the main rule, confiscation may only be made from the person to whom the property belonged at the time of the offence. This corresponds in principle to the provision on confiscation in Chapter 36, Section 5 BrB. This main rule does not, however, apply to confiscation pursuant to Section 9, first paragraph, point 1, i.e. laundered property or the value of such property. In such a situation, confiscation may be made from the perpetrator, i.e. the money launderer, or another person who has participated in the (money laundering) offence, even if the property belonged to someone else at the time of the offence. This is a substantial difference from what applies under Chapter 36, Section 5 BrB and what previously applied to confiscation in the case of money receiving offences.

 

 6.3.1. The risk of double confiscation must be taken into account

 

Since confiscation can be made from money launderers even when the property does not belong to them, there is a risk of double confiscation, i.e. confiscation of the property or its value both from perpetrators of the predicate offence and from money launderers. Risk of double confiscation can, for example, arise when a person has been previously convicted of a predicate offence and the sentence contains an order for the confiscation of a value that has not been enforced.

 

 The assessment of proportionality must always take into account the risk of double confiscation. According to the main rule, confiscation is to be made from the person who has gained proceeds from the offence. Furthermore, the property's value constitutes the upper limit for confiscation.

 

 In order to avoid double confiscation and unreasonable results, the proceeds of predicate offences that have been the subject of a money laundering offence should in the first instance be confiscated and neutralised from the person who has committed the predicate offence. For this reason, confiscation of property that has been the subject of a money laundering offence, but that does not belong to the money launderer, should only be made if the property is with the money launderer. When several persons have participated in the money laundering offence, confiscation should in the first instance target the person possessing the property or disposing over the value it has been converted into. A confiscation claim cannot be made jointly and severally.

  

6.4. Safekeeping in the case of commercial money laundering

 

 Confiscation cannot be made of property that has been the subject of commercial money laundering. This is directly pursuant to the text of Section 9, second paragraph. Such property can instead be taken into safekeeping under the Stolen Goods Act.

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It is currently not possible to take property into safekeeping that has been the subject of attempt, preparation or conspiracy to commit commercial money laundering. There is a proposal to make this possible, but this has not (May 2015) resulted in legislation.12

 

 The background to the fact that property is to be taken into safekeeping instead of being confiscated is that the criminal liability for commercial money laundering has culpable risk-taking in view, and the offence consists in participating in a measure that can reasonably be assumed to be taken for money laundering purposes. It has then not always been established that the property derives from an offence or criminal activities. In these circumstances, it is not relevant to confiscate property that has been the subject of commercial money laundering.

 

 According to the Stolen Goods Act, unless it is manifestly unreasonable, property that has been the subject of commercial money laundering is to be taken into safekeeping. According to the main rule, an order to take property into safekeeping pursuant to the Stolen Goods Act is delivered by a general court following a prosecutor petition, usually in connection with someone being prosecuted for an offence. Under certain conditions, prosecutors also have the possibility of themselves ordering safekeeping pursuant to the Stolen Goods Act.13

 

 It should be noted that confiscation can be made of the proceeds of commercial money laundering and anything a person has received in payment for costs incurred in conjunction with such an offence.

 

 Provisions on the procedure, etc. with property that has been taken into safekeeping are found in the Act (1974:1066) concerning procedure with confiscated property and lost property, etc.

                       

                                                            12 Government Bill 2014/15:94 Den nya polisorganisationen – några frågor om personuppgiftsbehandling m.m. [The new police organisation – some issues concerning personal data processing, etc.] which proposes that the amendments enter into force on 1 August 2015. 13 Section 2, third paragraph of the Stolen Goods Act. 

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7. Seizure of money (Sections 12−13)

  

 The section references made under this heading relate to the Money Laundering Offences Act.

 Seizures of money may be used only upon suspicion of an offence under the Money Laundering Offences Act.

A seizure of money can only concern money, claims or other rights.

If the seizure of money concerns a claim or other right, a prohibition shall be issued.  

 

7.1. Conditions, etc.  

 Seizure of money is a new coercive measure in criminal procedure. The coercive measure can only be used in the preliminary investigation of a money laundering offence or commercial money laundering in some form.

 

 Property in the form of money, claims or other rights that can reasonably be assumed to be the subject of an offence under the Money Laundering Offences Act, or an equivalent value, may be seized (seizure of money). A seizure of money can be used for physical cash but also in relation to things other than objects, such as the balance in an account.

 

 Money refers to cash and to electronic money under the Electronic Money Act (2011:755). Claims or other rights in this context refer to account balances, accounts with stockbrokers or the like.

 

 A seizure of money does not, as in the case of safekeeping/provisional attachment under the Swedish Code of Judicial Procedure, require there to be someone who can be suspected on good grounds for the offence. Suspicion shall instead be associated with the property that can reasonably be assumed to be the subject of an offence under the Money Laundering Offences Act.

 

 The Money Laundering Offences Act does not state any purpose of the seizure of money. In our view, it is closest at hand that seizures of money aim to secure future confiscation or safekeeping pursuant to the Stolen Goods Act. Administration by prosecutors should be mindful that other interests might need to be observed, such as a private claim by injured parties or a tax decision. In these cases, it might be relevant to use coercive measures other than a seizure of money or to allow another authority to be informed of the property following an application of the general clause in accordance with Chapter 10, Section 27 of the Public Access to Information and Secrecy Act.

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A seizure of money may be ordered only if the reasons for the measure outweigh the intrusion or other detriment that the measure entails for the suspect or for any other opposing interest. According to the preparatory works, the assessment of proportionality should take into account circumstances such as the property's value, how strong the suspicion of money laundering is, how great the risk is of the property being removed if no seizure is ordered and the damage the seizure of money could cause the owner of the property or the person disposing over the property.

 

 It is the prosecutor or the investigation leader who orders seizure of money. A seizure of money may only concern available property. This means that the property is to be identified and available for immediate enforcement at, e.g. a bank. The provision thus grants no opportunity to search for property that could be taken in a seizure of money or to order a seizure of money concerning property that is not, but might become, available for a seizure of money. When a seizure of money concerns, for example, banknotes and coins, what should apply is what applies to seizures in general. This means, for example, that property in a safe deposit box becomes available for seizure only after the property has been found following a search warrant for the safe deposit box. Property covered by a prohibition on disposals of property may be considered available for a seizure of money. Likewise, the balance in an account at, e.g. a bank should probably be considered available if bank staff at the same moment are able to confirm that funds are in the account so that the order can be carried into effect immediately.14

 

 If the seizure of money concerns a claim or other right, such as a bank balance or securities in a securities account, the debtor or other person under obligation, i.e. the bank, shall be prohibited to discharge their obligation to any party other than the Swedish Police Authority. It is the investigation leader or the prosecutor who issues a prohibition in writing. In the practical application, the prosecutor should then, in our view, be able to delegate to the Swedish Police Authority to ensure that the debtor or other person under obligation is informed of the prohibition and to draw up a seizure protocol.

 

 In other respects, the provisions on seizure in the Swedish Code of Judicial Procedure apply to seizure of money. Among other things, this means that the person from whom the seizure of money is made shall without delay be notified of the seizure of money, and the person who has been affected by the seizure of money has the right to request the court's assessment of the seizure of money.

 

 There is nothing to prevent the same criminal investigation from having both seizure of money and objects seized under the provisions of Chapter 27 of the Swedish Code of Judicial Procedure, but it is not possible to apply the provisions at the same time on the same object. In cases where cash, e.g. due to fingerprints or to banknotes being from a certain range of serial numbers, might be important to a criminal investigation at the same time as being

  

                                                            14 See Parliamentary Ombudsman decision 2006-02-16, Ref. no. 5010-2003, which applies to the seizure of a physical object however. 

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relevant for a seizure of money, it should be seized according to the main rule in Chapter 27, Section 1 of the Swedish Code of Judicial Procedure.15 Should the investigation seizure be rescinded, it might become relevant to order a seizure of money.

 

 If a seizure of money concerning values of property is rescinded, the effect of the seizure of money ceases. If the seizure of money instead concerns cash, the provision of Chapter 27, Section 8a of the Swedish Code of Judicial Procedure is applied in that the money is to be returned to the person from whom the seizure of money was made or the person claiming the money. The provisions for issuance to injured parties in Chapter 27, Section 4a of the Swedish Code of Judicial Procedure are not to be applied. This is pursuant to the provision only being applicable in relation to objects that cannot be confiscated.

 

 Provisions on the seizure of money are also found in the Act (2002:444) on Criminal Responsibility for the Financing of Particularly Serious Crime in some cases.

  

7.2. Handling of seizures of money  

 Under Chapter 27, Section 10 of the Swedish Code of Judicial Procedure, a seized object shall be taken into safekeeping by the person who has enforced the seizure, but can under certain circumstances be left with the possessor. Furthermore, seized objects shall be carefully preserved and kept under strict supervision. In principle, these provisions also apply to seizures of money. For example, a seizure of money concerning cash should be handled according to the main rule and be taken into safekeeping by the Swedish Police Authority or other party that has enforced the seizure. It should also be noted that the Swedish Police Authority's regulations and the Swedish Economic Crime Authority's guideline state that seized cash shall normally be deposited in an interest-bearing account at a bank.16

 

 As regards seizure of money concerning claims or other rights, such as the balance in an account at a bank, the conditions are different. In these situations, the debtor or other person under obligation, e.g. the bank, shall in accordance with Section 13, second paragraph of the Money Laundering Offences Act, be prohibited to discharge their obligation to any party other than the Swedish Police Authority. In practice, this means that the money remains with the bank, but that the person concerned is unable to dispose over the money.17

   

                                                            15 See Ministry of Justice memorandum, Komplettering av penningtvättsutredningens förslag – en ny möjlighet att säkra egendom [Supplementation of the money laundering commission proposal], Ju2013/7019/L5, p. 11. 16  FAP 102-2, Swedish Police Authority's code of statutes RPSFS 2014:1 on seizure, etc. and EBMR 2014:2 – Handling of seizures, etc. In reference to the new police organisation, the Swedish Police Authority's regulations are currently subject to review (May 2015). 17 There is an ongoing (May 2015) discussion with the Swedish Police Authority on the handling of seizures of money in these situations, and there have also been requests for the Swedish Police Authority to review its regulations on the issue. This discussion concerns matters including the duty to preserve and whether the money should, instead of remaining with the bank, be transferred to an interest-bearing account of the Swedish Police Authority. 

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7.3. Seizures of money at the request of another State  

 As stated in the manual, International Legal Assistance in Criminal Matters, seizures under the International Legal Assistance in Criminal Matters Act (2000:562) may also be considered to cover seizures of money concerning property suspected of being the subject of money laundering or intended for terrorist financing. Thus, seizures of money at the request of a foreign state can be made and handled pursuant to the provisions of the International Legal Assistance in Criminal Matters Act (see more in the manual above).

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8. Prohibition on disposals of property

     

Through its Financial Intelligence Unit, the Swedish Police Authority has been able, before initiating a preliminary investigation, to temporarily prohibit the customer to move or otherwise dispose of property held by an operator, such as a bank (prohibition on disposals of property).

A prohibition on disposals of property can only concern money, claims or other rights. The order for a prohibition on disposals of property shall as soon as possible be reported to the prosecutor, who is to promptly take a position on whether the measure shall continue in effect.

 A prohibition on disposals of property applies for no more than two working days from the Swedish Police Authority's order.

      

8.1. Conditions, etc.  

 Provisions on the prohibition on disposals of property and notifications of such prohibitions are found in Chapter 3, Sections 8−9 of the administrative Money Laundering Act.

 

 Through its Financial Intelligence Unit (and, according to a proposal, also the Swedish Security Service from 1 August 2015)18, the Swedish Police Authority can temporarily secure property held by an operator by ordering property or the equivalent value not to be moved or otherwise disposed of (prohibition on disposals of property) until further notice either by the customer or other person who might be authorised (e.g. by a power of

attorney) to dispose over it.  

 A prohibition on disposals of property requires there to be grounds to suspect that the property has been the subject of a money laundering offence. The evidence requirement is thus lower than that for a seizure of money. The purpose of the regulation is to be able to intervene even before there is sufficient suspicion for initiating a preliminary investigation. The order is a precursor to a coercive measure in the criminal procedure and shall as soon as possible be referred for the prosecutor to take a position on whether the order shall continue in effect. The suspicion, which is to be based on concrete

                                                            18 Government Bill 2014/15:94 Den nya polisorganisationen – några frågor om personuppgiftsbehandling m.m. [The new police organisation – some issues concerning personal data processing, etc.] which proposes that the amendments enter into force on 1 August 2015. 

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circumstances, shall be associated with the property and does not need to be associated with a person. It is thus not necessary for there to be a suspect

 

The property is to be held by an operator under the operator's control on behalf of a customer. According to the administrative Money Laundering Act, the term “operator”, in addition to actors and advisers for financial services, also includes professional activities relating to cash trading in expensive goods and trading in, e.g. properties on behalf of customers. The most common cases probably concern balances in accounts at a bank.

 

 Property refers to money, claims or other rights. In the first instance, this is of relevance to account balances, but cash in the form of banknotes and coins, shares, bonds or other paperless securities are also covered. Money transfers via various types of payment services can be performed without sender or recipient having any account with the company. Such transfers are also encompassed by the provisions on the prohibition on disposals of property.

 

 An order for the prohibition on disposals of property requires imminent danger and the reasonable fear that the property will otherwise be removed. The risk of sabotage shall be assessed in relation to the property. The assessment can take into account transaction patterns in, e.g. the account in question, as well as due diligence concerning the customer disposing over the property or requesting a particular transaction.

 

 The reasons for an order for the prohibition on disposals of property shall outweigh the intrusion or other detriment entailed, i.e. the proportionality principle is to be observed. The proportionality assessment shall, among other things, consider the property's value, the degree of suspicion, the risk of removal and the damage that might arise.

 

 The prohibition on disposals of property does not need to be associated with a particular transaction, but can also concern a value equivalent to what might be expected to become subject to confiscation.

  

8.2. Period of validity  

 A prohibition on disposals of property applies for no more than two working days from the Swedish Police Authority's order. Note that two working days refers to the time, i.e. the time of day, from the order to the same time two working days later. Working days do not include Saturdays, Sundays or public holidays, Midsummer's Eve, Christmas Eve or New Year's Eve.19 If an order has been issued on a Friday at noon, it applies until the following Tuesday at noon. When the specified period has expired, the prohibition on disposals of property automatically ceases to apply.

 

 A previous position can be reconsidered at any time. If, in its continuing investigation following the prosecutor's order for the prohibition on disposals of property, the Swedish Police Authority obtains information entailing

                                                            19 Cf. Section 2, first paragraph of the Act (1930:173) on the calculation of statutory time limits. 

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that there are no longer grounds to suspect money laundering, the information must be immediately communicated to the prosecutor for a new assessment.

 

 In our view, it is the Swedish Police Authority and not the prosecutor that leads the continuing investigation while the prohibition on disposals of property is elapsing. This probably follows from the fact that the preliminary investigation has not been initiated and that the prosecutor therefore cannot assume the role of preliminary investigation leader. The prosecutor can, however, provide guidance on which further investigation he or she considers necessary for being able to initiate a preliminary investigation.

  

8.3. The prosecutor's consideration of prohibition on disposals of property

 

 The Swedish Police Authority's order for a prohibition on disposals of property shall as soon as possible be reported to the prosecutor. The prosecutor is to then promptly decide whether the prohibition on disposals of property shall continue in effect. If the prosecutor considers the basis sufficient to initiate a preliminary investigation, he is not prevented from ordering other coercive measures instead of establishing the prohibition on disposals of property. The Swedish Police Authority otherwise has the opportunity within the two-day time limit to supplement the investigation, after which the position on the question of initiating a preliminary investigation can be reconsidered.

 

 The preparatory works state that before this reconsideration the prosecutor should have access to the same decision-making documentation as the Swedish Police Authority. The preparatory works also state that the investigation produced by the Swedish Police Authority should always accompany the Swedish Police Authority's report of a prohibition on disposals of property as well as the Swedish Police Authority's written order for the prohibition on disposals of property.20

 

 In practice, the Swedish Police Authority's report to the prosecutor is commonly made over the phone. In our view, the prosecutor's consideration should have access to the written order and the documentation forming the basis of the Swedish Police Authority's order. Thus, as soon as the Swedish Police Authority has completed the written documentation, including the order, this should be sent to the prosecutor, preferably by e-mail between the approved domains @polisen.se and @aklagare.se or @ekobrottsmyndigheten.se (e-mail addresses with these endings). The Authority's OWA solution21 is not to be used as a sender/recipient.22

 

    

                                                            20 Government Bill 2013/14:121 p. 128. 21 E-mail access from a computer outside the Swedish Prosecution Authority/Swedish Economic Crime Authority – webmail. 22 See more in the Swedish Prosecution Authority's decision on approved communications regarding e-mails covered by secrecy, etc. (ÅM-A 2014/1244) and ÅMR 2012:3, ÅMR 2013:3, ÅMR 2013:4 and the Swedish Prosecution Authority's manual for the secure handling of information. 

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The documentation for the Swedish Police Authority's order for the prohibition on disposals of property can consist of money laundering reports from the operator and other notification material covered by secrecy. The Swedish Police Authority does not submit the material in its original form but compiles the information in decision-making documentation that is submitted to the prosecutor together with the Swedish Police Authority's order for the prohibition on disposals of property.

 

 The prosecutor's order shall be documented and registered in an A matter in Cåbra.23

Order templates are available in Wåns and Cåbra.  

 The prosecutor's order for the prohibition on disposals of property may not be appealed.

 

 8.4. Notifications

 

 8.4.1. Notification to operators

 

The operator, such as a bank, is to be immediately notified of an order for the prohibition on disposals of property or of whether such an order has been rescinded. It is the Swedish Police Authority that makes the decision on a prohibition on disposals of property and that initially notifies the operator. In our view, the operator should also be notified of the prosecutor's position on whether or not the prohibition on disposals of property shall

continue in effect. This notification can be delegated to the Swedish Police Authority.  

 8.4.2. Notification to the affected party

 

The party affected by an order for the prohibition on disposals of property, such as the account holder, is to be notified of the order when it can be assumed that the disclosure of this information will neither counteract the purpose of an ordered/anticipated measure nor harm the future investigation. In our view, it should as a rule be possible to make notification when the prohibition on disposals of property has transitioned into a seizure of money, since the affected party is then to be notified of the seizure without delay.24

 

 It is always the prosecutor who is to order notification. This applies even if the matter does not lead to a preliminary investigation. In these cases, the prosecutor can, according to the preparatory works, normally order notification in connection with the decision not to initiate a preliminary investigation.

 

 Notification does not need to be made if this is manifestly of no significance with regard to the circumstances. According to the preparatory works, this might, for example, be the case if the person concerned has already by other means become aware of the prohibition on disposals of property or when the prohibition has applied for a very short time and the risk that the person concerned

 

 

                                                            23 Ekonätet and Rånet have information and procedures concerning the registration of prohibitions on disposals of property in Cåbra. 24 See Chapter 27, Section 11 of the Swedish Code of Judicial Procedure. 

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has suffered any damage is therefore small. The position/decision regarding the omission of notification shall, in our view, be documented.

  

8.5. Prohibition on disposals of property at the request of another State

 

 A prohibition on disposals of property can be requested by the Financial Intelligence Unit of another State. A request of this kind is addressed to the Swedish Police Authority.

 

 Even if the affected party is to be notified of the order for the prohibition on disposals of property, there is, in contrast to a seizure of money, the possibility to defer notification so as not to harm the future investigation. However, an order for the prohibition on disposals of property might be visible to the affected party if, e.g. he logs on to the internet bank in question. As the requesting State might take the view that a potential order for the prohibition on disposals of property is not to be visible to the customer in any way, it is important that the requesting State is informed of this risk.

 

 In situations where the validity of the prohibition on disposals of property is nearing its end, and it is impossible for a request for legal assistance from the other State to be submitted and/or translated in time before the limit expires, it should in our view be considered whether there are conditions for initiating a Swedish preliminary investigation for money laundering offences and thereby gaining the opportunity to use coercive measures. The normal provisions on preliminary investigations apply.

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9. Concurrent offences, legal force, statutory limitation and transitional provisions

  

 9.1. Concurrent offences

 

 The preparatory works state the protection interests justifying the criminalisation of money laundering to be right of individuals and the public to the protection of property as well as the interest of effectively fighting particularly economic and organised crime. A further protection interest is to counteract the entrance and circulation of the proceeds of crime in the financial systems.

 

 Situations with concurrent offences will arise. In relation to the predicate offence, this becomes particularly evident as regards self-laundering. The preparatory works state that the issue of concurrent offences in self-laundering can be managed through the provisions on concurrent offences, in the same way as with the offence of receiving.25 In accordance with general principles of concurrent offences, a money laundering offence in the form of self-laundering should as a main rule be considered consumed by and co-penalised with the predicate offence that gave rise to the proceeds. Some subsequent action is seen as a natural part of the predicate offence, and the court should normally only convict of the predicate offence.

 

 There might be situations where there is justification for convicting of concurrent offences, i.e. convicting of liability both for the predicate offence and the money laundering offence. These are above all cases where a person has only participated to a limited extent in the predicate offence but has had a decisive role in the subsequent money laundering. It might also be relevant when the money laundering measures clearly go beyond what may be considered the customary handling of proceeds of crime.

 

 The previous legislation on money receiving stated that if an act could be deemed both receiving and money receiving, the court was to convict of receiving. Furthermore, both receiving and money receiving trump the offence of protecting a criminal. However, the preparatory works to the legislation now in view state that if there are conditions regarding the same act for convicting both of a money laundering offence and of receiving, the court should convict of the money laundering offence. The same should apply if a money laundering offence also satisfies the requisite of the offence of protecting a criminal. Money laundering offences are not considered a qualified form of these types of crime. According to a statement in the report forming the basis for the legislation, the same reasoning shall also apply to an act that is also

                                                            25  Also see, inter alia, NJA 1985 p. 796, NJA 1943 p. 590 and RH 1988:33. 

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to be deemed falsification of a document, i.e. the court should as a rule only convict of the money laundering offence26

 

 Where punishable failure of operators to fulfil their obligations under the administrative Money Laundering Act coincides with liability for commercial money laundering, there shall in accordance with the provisions on concurrent offences only be a conviction for commercial money laundering.

  

9.2. Legal force  

 If a person has previously been convicted of a predicate offence and the sentence includes a confiscation order that has been enforced, there are no remaining proceeds that can be the subject of money laundering measures. However, if the confiscation has not been enforced, there is scope for a perpetrator to take money laundering measures with the proceeds from the predicate offence. Confiscation cannot again be made of the property.

 

 The Supreme Court has determined that if theft and receiving are alternative explanations for a person's possession of particular property, it is a matter of the same act in Chapter 45, Section 5, third paragraph and Chapter 30, Section 9 of the Swedish Code of Judicial Procedure (NJA 1980 p. 686). This applies independently of how much the alternatives differ from each other with regard to time, place and the course of events in general.

 

 The preparatory works state that it is not a given that the same assessment is to be made with regard to the relationship between a predicate offence and a subsequent money laundering offence. One reason is that these offences can have partly different protection interests. The determination of this issue is left to the application of law.

  

9.3. Statutory limitation  

 With regard to receiving, the Supreme Court has stated that the statutory limitation for a theft offence is, as a main rule, to be deemed to also encompass later measures whereby the perpetrator has appropriated property or impeded its restoration (NJA 1985 p. 796). Translated to the area of money laundering, this would mean that self-laundering normally becomes statute-barred at the same time as the predicate offence. As stated above, some situations have scope to convict of concurrent offences, i.e. both for the predicate offence and for the money laundering offence. Therefore, according to the preparatory works, the result of this is that the period of limitation in these cases is to be calculated from the first completed act of money laundering. Other ways of calculating would result in someone being able to go free from liability for a money laundering offence by admitting to their participation in a statute-barred predicate offence.

                                                            26 SOU 2012:12, Penningtvätt – kriminalisering, förverkande och dispositionsförbud [Money laundering – criminalisation, confiscation and prohibition on disposals of property], p. 458. 

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Where it is not the same perpetrator who has committed a predicate offence, such as receiving, the Supreme Court has stated that the period of limitation for the receiving of a physical object should be calculated from the first action that constitutes completed receiving (NJA 1984 p. 564). Subsequently undertaken receiving measures do not affect the period of limitation. However, according to the court, there are exemptions from this principle, e.g. when acts of receiving are not in line with the first measure or in other distinctive situations.

 

 The principles just mentioned also have application with regard to money laundering offences, which means that there is scope for not always calculating the time of the limitation period from the first completed act of money laundering when the subsequent money laundering measures cannot be considered to be in line with the first money laundering measure or in other special situations. However, the determination of when exemptions can be made from the main rule has been left to the application of law.

  

9.4. Transitional provisions  

 There are no transitional provisions. According to general provisions, new legislation does not have retroactive effect. For this reason, the new penalty provisions and the provisions on confiscation are only to apply as regards money laundering acts committed after these provisions' entry into force. However, it is possible for the predicate offence to have been committed prior to this.

 

 For acts committed prior to entry into force, the older provisions shall apply, unless application of the new provisions leads to a mitigated assessment or sanction.