Chapter IV Fight against Money Laundering

Transcription

1 Chapter IV Fight against Money Laundering

2 Structure of the presentation Legal framework Institutional framework and Capacities Plans

3 EU legal framework Directive 2005/60 EC (the Third AMLD ); Directive 2006/70 EC (the implementing Directive ) lays down implementing measures for Directive 2005/60/EC; Regulation 1781/2006 on information on the payer accompanying transfers of funds.

4 I LEGAL FRAMEWORK

5 Serbian legal framework Criminal Code ( RS Official Gazette, No. 114/09) Law on the Prevention of Money Laundering and Terrorism Financing ( RS Official Gazette, No. 20/2009, 72/2009, 91/2010) Rulebook on the Methodology Concerning the Implementation of the AML/CFT Law ( RS Official Gazette, No. 7/2010, 41/2011)

6 Criminal Code/Money Laundering (Official Gazette of Republic of Serbia no. 114/09) Article 231 (1) Whoever converts or transfers property while aware that such property originates from a criminal offence, with intent to conceal or misrepresent the unlawful origin of the property, or conceals and misrepresents facts on the property while aware that such property originates from a criminal offence, or obtains, keeps or uses property with foreknowledge, at the moment of receiving, that such property originates from a criminal offence, shall be punished by imprisonment of six months to five years and a fine. (2) If the amount of money or property specified in paragraphs 1 of this Article exceed one million five hundred thousand dinars, the offender shall be punished by imprisonment of one to ten years and a fine. (3) Whoever commits the offence referred to in paragraphs 1 and 2 hereof using the assets he himself obtained through commission of an offence shall be punished with the penalty prescribed in paragraphs 1 and 2 hereof and fined. (4) Whoever commits the offence referred to in paragraphs 1 and 2 hereof in a group, shall be punished with imprisonment of two to twelve years and fined. (5) Whoever commits the offence specified in paragraph 1 and 2 of this Article, and could have been aware or should have been aware that the property represents proceeds acquired by criminal offence, shall be punished by imprisonment of up to three years. (6) The responsible officer in a legal entity who commits the offence specified in paragraphs 1, 2 and 5 of this Article shall be punished by the penalty stipulated for that offence, if aware or should have been aware that the money or property represents proceeds acquired by criminal offence. (7) The money and property specified in paragraphs 1 through 6 of this Article shall be seized.

7 Criminal Code/Financing Terrorism Article 393 (1) Whoever directly or indirectly gives or collects funds with the intention to use them or knowing that they will be used, fully or partially, for commission of criminal acts referred to in articles 391 to 392 hereof or for financing of persons, a group or organized crime group who intend to commit these acts, Shall be punished with imprisonment from one to ten years. (2) The funds specified in paragraph 1 of this Article shall be seized.

8 Law on the Prevention of Money Laundering and Terrorism Financing (Official Gazette RS, no 20/09, 70/09 and 91/10) Adopted in 2009, amended in 2010 Risk-based approach (Article 7) The obligor shall conduct an analysis of the money laundering and terrorism financing risk in accordance with the guidelines adopted by the body competent for the supervision of the implementation of this Law.

9 obligors banks intermediaries in realestate transactions bureaux de change accountants investment funds broker-dealer companies tax advisors voluntary pension funds leasing companies insurance companies organisers of games of chance in casinos organisers of games of chance on the Internet auditors Intermediaries in provision of loans Factoring and forfeiting legal persons that provide money transfer services

10 Actions and measures taken by obligors Article 6 1) customer due diligence; 2) sending information to the APML; 3) licensed compliance officer; 4) regular professional education; 5) internal control of the obligations laid down in the Law; 6) indicators; 7) record keeping, protection and keeping of data from such records 8) implementation of the measures laid down in this Law in obligor branches ; 9) implementing other actions and measures based on this Law.

11 Customer due diligence Article 8 identify the customer; verify the identity of the customer based on documents, data, or information obtained from reliable and credible sources; identify the beneficial owner and verify the identity in the cases specified in this Law; obtain information on the purpose and intended nature of a business relationship or transaction, and other data in accordance with this Law; regularly monitor business transactions of the customer and check the consistency of the customer s activities with the nature of the business relationship and the usual scope and type of the customer s business transactions.

12 When are CDD measures applied? Article 9 when establishing a business relationship with a customer; transaction > EUR 15,000 when there are reasons for suspicion of money laundering or terrorism financing with respect to a customer or transaction; when there are doubts about the veracity or credibility of previously obtained documentation.

13 When are CDD measures applied? Article 10 before the establishment of a business relationship (Article 10 par. 1) except in case of life insurance, prior to the time of payout at the latest (Article 10 par. 2)

14 Beneficial owner Who is he/she? Article 3 Beneficial owner of a customer - natural person who owns or controls a customer Natural person who owns, directly or indirectly, 25% or more of the business share, shares, voting right or other rights; or Natural person who has a dominant position in managing the assets of the legal person

15 Beneficial owner Article 20 How to identify BO? Official public register Business documentation Written statement

16 Simplified customer due diligence actions and measures Article 32 Obligor; Obligor from a foreign country on a list of states which implement international AML/CFT standards at the EU level or higher; State body, autonomous province body, etc; Company whose issued securities are included in an organized securities market located in a state where international standards are applied; Person representing a low risk of ML/TF based on risk assessment.

17 Simplified customer due diligence actions and measures I client Article 3 of the Rulebook Foreign state authority if: 1) it carries out a public function based on primary and secondary EU legislation; 2) its identity can be established from publicly available sources; 3) its business procedures, as well as the results of the audit of its business, are known and publicly available; 4) it is responsible to an institution of the EU or an EU member state, or an efficient control of its activities can be ensured in another manner.

18 Enhanced customer due diligence actions and measures Article 28 loro correspondent relationship with a bank or a similar institution having its seat in a foreign country which is not on the list of countries that apply the AML/CFT international standards; foreign official; when the customer is not physically present at the identification and verification of the identity.

19 Foreign official Article 3 Foreign official means a natural person who holds or who held in the past year a public office in a foreign country or international organisation, including : -heads of State and/or heads of government, members of government and their deputies or assistants; -elected representatives of legislative bodies; - judges of the supreme and the constitutional courts or of other highlevel judicial bodies whose judgments are not subject to further regular or extraordinary legal remedies, save in exceptional cases; - members of courts of auditors or of the boards of central banks; - ambassadors, chargés d'affaires and high-ranking officers in the armed forces; - members of the managing or supervisory bodies of legal entities whose majority owner is the State; Close family member or close associate

20 Prohibition of business transactions with shell banks Article 35 The obligor may not enter into or continue a correspondent relationship with a bank which operates or which may operate as a shell bank, or with any other similar institution which can reasonably be assumed that it may allow a shell bank to use its accounts.

21 Suspicious transaction reporting Article 37 par. 2 The obligor shall furnish the APML with the data laid down in Article 81, par.1 of this Law whenever there are reasons for suspicion of money laundering or terrorism financing with respect to a transaction or customer, before the transaction, and shall indicate, in the report, the time when the transaction is to be carried out. In a case of urgency, such report may be delivered also by telephone, in which case it shall subsequently be sent to the APML in writing, but no later than the next business day.

22 Keeping of data Article years- data and documentation concerning a customer, established business relationship and executed transaction; 5 years- concerning compliance officer, deputy compliance officer, professional training of employees and executed internal controls.

23 Professional education Article 43 The obligor shall provide for a regular professional education, training and specialisation of employees carrying out the tasks of prevention and detection of money laundering and terrorism financing; The obligor shall develop annual professional education, training and specialisation programmes for the employees in the area of prevention and detection of money laundering and terrorism financing.

24 Data on the originator of a wire transfer Article 12a Payment and collection service provider shall collect accurate and complete data on the originator and include it in the form or message accompanying the incoming or outgoing wire transfer, regardless of the currency. Such data shall accompany the wire transfer throughout the entire payment chain, regardless of whether intermediaries participate in the payment chain and regardless of their number. Data referred to in paragraph 1 of this Article include: name and surname of the wire transfer originator address of the wire transfer originator account number of the wire transfer originator or the unique identifier.

25 Exemptions Article 12c when the wire transfer is carried out from an account opened with a financial institution if CDD measures have already been performed; when paying taxes, fines, and other public payments; when the wire transfer originator withdraws money from their own account; when both the originator and beneficiary of the wire transfer are payment and collection service providers.

26 II INSTITUTIONAL FRAMEWORK AND CAPACITIES

27 Sistem Preventivni Represivni

28 Administration for the Prevention of Money Laundering Established in 2002 Financial intelligence tasks: collection analysis dissemination

29 Administration for the Prevention of Money Laundering

30 International cooperation Member of the Egmont Group since MOUs In 2013 the APML received 102 requests and sent 148 requests to foreign FIUs, most of the information exchanged were with the FIUs of Montenegro, Croatia and Macedonia.

31 Requesting data from the other state bodies Article 55 the APML may request data, information and documentation required to detect and prove money laundering or terrorism financing from the state bodies, organizations and legal persons entrusted with public authorities. 8 days deadline may provide for direct access as well

32 Requesting data from the obligors Article 53 Reasonable grounds for suspicion, no matter if that specific obligor reported an STR 8 days deadline for response Deadline can be shorter or longer, at the obligor s request, in justifiable cases APML can request insight into the obligor s documentation

33 Monitoring of customer s financial transactions Article 57 reasons for suspicion of money laundering or terrorism financing written order to the obligor to monitor all transactions and business operations of such persons carried out in the obligor also in relation to persons who participated or cooperated in execution in transactions 3 months, 6 months maximum

34 Temporary suspension of transaction Article 56 reasonable grounds for suspicion of money laundering or terrorism financing written order of the APML director to the obligor in urgent cases, an oral order can be issued hours

35 Initiative by another state authority Article 58 court, public prosecutor, police, Security Information Agency, Military Security Agency, Military Intelligence Agency, Tax Administration, Customs Administration, National Bank of Serbia, Securities Commission, Privatization Agency, competent inspectorates and State bodies competent for state auditing and fight against corruption reasons for suspicion on money laundering or terrorism financing a written and grounded initiative

36 Dissemination Article 59 If the APML assesses, based on the obtained data, information and documentation, that there are reasons for suspicion of money laundering or terrorism financing in relation to a transaction or person, it shall inform the competent State bodies thereof in writing, in order that they may undertake measures within their competence, and send them the obtained documentation.

37 Received STRs 2013 Note: the majority of STRs were submitted by money remitters 63 reports involving 203 persons

38 Exchange of information 2013

39 Predicate crimes 2013

40 Other competences of the APML Coordination of the NRA Coordination of the development of the system Drafting of regulations Training Typologies and trends Supervision

41 Authorities in charge of supervision over the implementation of the AML/CFT Law APML NBS Securities Commission Tax Administration Ministry of Trade, Tourism and Telecommunicati ons Bar Association Auditing companies Entrepreneurs and legal persons for: Provision of accounting services Tax advising Provision of guarantees Legal persons for: Factoring and forfeiting in the country Money transfer in the country Postal communication in the country Banks Financial leasing providers Voluntary pension funds management companies Insurance companies, insurance brokerage companies, insurance agents life insurance Banks(custody and brokerdealer businesses) Broker-dealer companies Investment fund management companies Licensed bureaux de change Legal persons for: Factoring and forfeiting abroad Money transfers abroad Provision of guarantees Postal communication abroad Organisers of special games of chance Organisers of games of chance operated on the Internet, phone, etc. Prohibition of business activities in cash Entrepreneurs and legal persons for intermediation in trade in real estate Postal services Prohibition of business activities in cash Lawyers

42 III PLANS

43 New AML/CTF Strategy levels: Policy level Repression Prevention Level of education Action plan

44 Plans Adoption and implementation of the Strategy and Action Plan Training center Amendments to the Law with the aim of harmonizing with new Recommendations and IV Directive Strengthening of capacities Development of strategic analysis Further strengthening of cooperation with the state authorities