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Faster in the money laundering suspicion visor: Higher Regional Court Frankfurt am Main takes bank coworker with the indication of suspicion more strongly into the obligation with the delivery of reports

Deutsche Version
Reports from clients who are accused of prematurely criminal money laundering (§ 261 StGB) are increasing. This applies in particular to those clients who – mostly due to their business activities – make higher or regular cash deposits, such as gastronomes or commercial merchants. If large sums of money are to be transferred abroad in international transactions, the suspicion of money laundering is also obvious for the banking departments entrusted with this task.
In view of recent case law of the Higher Regional Court of Frankfurt am Main (Higher Regional Court Frankfurt am Main, order of 10.04.2018 – 2 Ss-OWi 1059/17), the tendency of bank employees (so-called money laundering officers pursuant to § 11 (1) GWG) to report too many suspected money laundering transactions rather than too few, pursuant to §§ 43 (1) following of the GWG, is likely to increase. GWG – not only with the consequence of „pending“ bank transactions, but also with often hastily initiated preliminary proceedings and the corresponding need for criminal defence.
Such an employee was sentenced to comparatively high fines because she did not immediately report a suspicion to the competent authority (author’s note: Central Office for Financial Transaction Investigations of the Federal Customs Administration – „Financial Intelligence Unit“), but first wanted to check her suspicion for substantiation, because she did not want to report suspicions „into the blue“.
The Higher Regional Court opposed this, because in its opinion such reports of suspicions do not require a „genuine“ initial criminal suspicion, but should be made as early as possible in order to be able to prevent suspicious money laundering activities before they are carried out. So only with a hint of a hunch? On the other hand, the Higher Regional Court left open the degree to which this „suspicion“ must have.
However, some information can be found on the website of the Bavarian State Ministry of the Interior and for Integration as follows:
„The reporting obligation exists regardless of the value of the transaction (there is no threshold value of 10.000,00 euros for goods traders!), the type of asset concerned (not only for money transactions!) and the method of payment (no restriction to cash payments for goods traders!). You must immediately send a suspicious transaction report to the Financial Intelligence Unit (FIU) of the Directorate General of Customs as soon as one of the following indications exists:
The asset could be the result of a criminal activity or
have a criminal origin,
the transaction or
the property is used to finance terrorism, or
is connected with it and/or
the contractual partner does not disclose to you whether he is acting on behalf of a beneficial owner“.

The actually innocent little word „or“ can be used to determine the „degree of suspicion“: The mere possibility („felt“ by the money laundering commissioner) alone leads to the obligation to report. The actual, criminal relevant initial suspicion is then examined in the context of a „real“ criminal investigation procedure with the well-known inconveniences for the respective accused – presumption of innocence or not…
If you see any signs of your bank reporting a money laundering suspicion – in particular (foreign) transfers that have not been carried out – place yourself as promptly as possible in the hands of lawyers experienced in criminal law. It is not uncommon for completely innocent people to talk their heads off under the impression of a criminal investigation or to burden friends and relatives without necessity or intent.

Rechtsanwalt in Hannover, Sebastian Knarse
Sebastian Knarse
Rechtsanwalt in Hannover
Steuerstrafrecht und Wirtschaftsstrafrecht sowie Medizinstrafrecht
Tel.: +49 511-897 67 0
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