Belgium: Belgian Law on Money Laundering
Pages | 105-107 |
Date | 01 February 1995 |
DOI | https://doi.org/10.1108/eb025686 |
Published date | 01 February 1995 |
Author | Laurent Garzaniti |
Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 3 No. 1 — International
INTERNATIONAL
Belgium:
Belgian Law on Money Laundering
Laurent Garzaniti
Belgium has implemented the EC Directive on
prevention of the use of the financial system for
the purpose of money laundering ('EC Directive')1
in two stages. First, anticipating the entry into
force of the EC Directive, the Law of 17th July,
1990 introduced the concept of money laundering
into Belgian criminal law. Secondly, the Law of
11th January, 1993, created a requirement that
financial institutions establish certain internal pro-
cedures intended to identify money launderers and
report any transactions which they suspect may
relate to money laundering to a newly created
authority.2
CRIMINAL LAW: THE LAW OF 17TH
JULY, 1990
Like the Netherlands and Denmark, Belgium has
opted for including money laundering in a broadly
defined offence of 'handling stolen goods' rather
than creating a specific money laundering felony.
Indeed, Article 505, s. 2 of the Criminal Code as
amended by the Law of 17th July, 1990, provides,
in substance, that individuals who purchase,
exchange, receive as a gift, possess, keep or manage
the proceeds (avantages
patrimoniaux)
of felony, or
goods or valuables purchased with such proceeds,
or income resulting from the investment of such
proceeds, while they knew or should have known
of the criminal origin of the assets involved, are
guilty of a felony and may be subject to a jail
sentence of between 15 days and five years and/or
subject to a fine of between BF26 and BF100.000.3
In addition, Article 43 of the Criminal Code pro-
vides for mandatory impounding of proceeds of
felonies and of the means of their realisation.
Like the Netherlands, Belgium has elected to
give a broad scope to the offence of money laun-
dering. Indeed, the offence created by Article 505
s. 2 of the Criminal Code may be committed in
relation to the proceeds of any felony (ie, generally
offences that can be punished with jail terms of
eight days or more) regardless of its nature.4
This very broad definition has been widely criti-
cised by legal writers.5 They argue that the broad
scope of the law may reduce its effectiveness by
preventing the judicial authorities focusing on the
laundering of the proceeds of drug-related offen-
ces.
In the Netherlands, a similarly broad provision
has scarcely been applied.6 This pattern is, it
seems, being repeated in Belgium, where, nearly
five years after its entry into force, only two judi-
cial decisions applying Article 505 s. 2 have been
published.7
However, those decisions have clarified two
areas of uncertainty in the interpretation of Article
505 s. 2. First, it is now clear that it creates an
offence, which is committed instantaneously and
immediately completed, rather than a continuing
felony. In other words, the offence of money laun-
dering is committed at the moment an individual
takes possession of the proceeds of a crime.
Accordingly, the statute of limitation starts to run
as of the day the individual takes possession of the
proceeds of a felony and an individual that takes
possession of such proceeds in ignorance of their
illicit origin is not guilty of money laundering,
even if he subsequently learns their true origin
while they are still in his possession.8
Secondly, the case law has clarified the mens
rea
requirement (the moral element) of the offence of
money laundering. It was unclear from the word-
ing of Article 505 s. 2
('[...]
knew or should have
known their origin'), whether the intention of the
Belgian Parliament was to criminalise negligent
money laundering.9 However, the courts have now
held the crime of money laundering can only be
committed intentionally and that the inclusion of
the term 'should have known' does no more than
permit the judge to infer from objective circum-
stances that a person knew of the illicit origin of
the proceeds in question. For example, a judge
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