Chapter 7: National and International Cooperation
BOX 7.2
Supervisor–Prosecutor–Law Enforcement Cooperation
In the Netherlands, the AML supervisors meet regularly with the prosecutor’s office and the investigative authorities for financial economic crime. This meeting is known as the Tri-Partite Meeting (Tripartiete Overleg or TPO). The need for the TPO is both practical and legal. Because Dutch law determines that the imposition of an administrative fine is a punishment, such an imposition triggers the principle of double jeopardy. In consequence, it is not possible to impose both an administrative fine and a criminal sanction for the same offence. Any enforcement action taken by the supervisor regarding a particular infringement of AML/CFT obligations therefore precludes action being taken by the law enforcement authorities, and vice versa. The TPO’s primary purpose, then, is to decide what route to take, because the single choice of either the administrative or the criminal route is binding. This is known as the una via principle. Although there are no clear-cut rules for deciding whether the prosecutor or the supervisor will take action in any given case, there are some underlying considerations. The primary intention of administrative action is to ensure the compliance of the relevant institution, while criminal action is seen as the ultimate remedy. In other words, the assumption is that the state will first take administrative action and resort to criminal action only when administrative action has proved ineffective. This occurs in cases of recidivism and of deliberate money laundering and, very occasionally, on other grounds, when a supervisor can demonstrate that criminal sanctions are the only appropriate remedy for certain conduct. Recidivism cases are those in which administrative action has demonstrably failed to bring about the desired effect of compliance. The institution or person at fault either continues to operate contra legem or does not take any measures to prevent AML legislation infringement. When a legal entity is involved, the investigation and prosecution should target not only the entity, but also the natural person who is actually responsible for the criminal conduct. Sanctions other than monetary penalties may be applied, because they are unlikely to have the desired effect when substantial administrative fines have already failed. In such cases, suspended jail sentences or other sanctions have to be considered. In cases of deliberate money laundering, where there are concrete indications that AML legislation is being deliberately violated to facilitate or perpetrate money laundering, supervisory action will serve no purpose and criminal investigation and prosecution is, therefore, the only option. In principle the TPO meets once a quarter, but there is a procedure for dealing with emergency situations. The TPO only addresses the infringement of AML legislation and possible cases of money laundering. Participants can register cases with the TPO secretary using a standard form. The registration should include case content, full identification information, evidence of wrongdoing, possible problems, the relevance for TPO participation, the nature of the desired action and, where relevant, sensitivity, recidivism history of the suspect, that is, any earlier administrative action taken or threatened, and other important circumstances.
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