Draft Money Laundering Amendment 2020: Changes to the Criminal Code

Nov 20, 2020 Benn-Ibler Rechtsanwälte

A ministerial draft of the Federal Ministry of Justice (Bundesministerium für Justiz, BMJ) to amend the Austrian Criminal Code (Strafgesetzbuch, StGB) is intended to implement Directive (EU) 2018/1673 on the criminal law combating of money laundering.

First, a newly created Sec. 33 (3) StGB is intended to create a special reason for the severity of penalties for the offence of money laundering (Sec. 165 StGB). Accordingly, it is an aggravating factor if the offender of money laundering is an obligated party as defined in Article 2 of Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering and terrorist financing and the offence is committed in the course of his or her professional activities. Obligated parties are e.g. credit and financial institutions, auditors or lawyers.

The core of the amendment is a change in the offence of money laundering (Sec. 165 StGB). The new Sec. 165 (1) is a modification of the current paragraph 1 (foreign money laundering) and paragraph 2 (own money laundering). The punishability of own money laundering (money launderer was also the perpetrator of the predicate offence from which the property component originated) is to be extended. While the offence of converting or transferring the assets was previously only punishable as foreign money laundering, it should now also be punishable as own money laundering. In contrast to the current version, which presupposes knowledge on the subjective side, the new version is supposed to be based on conditional intent. However, it is essential that the perpetrator conceals or disguises the illegal origin or supports those involved in the predicate offence in escaping the legal consequences (extended intent in the form of intention).

The potential penalty for own and foreign money laundering is increased to six months to five years.

BMJ, Draft (15.09.2020)