Law No. 1.521 of 11 February 2022 on various criminal measures relating to money laundering and against fraud and counterfeiting of non-cash means of payment

Law No. 1. 521 of 11 February 2022 on various criminal measures to combat money laundering, fraud and counterfeiting of non-cash means of payment (JDM No. 8577 of 11 February 2022, and Erratum published in JDM No. 8578 of 18 February 2022) is the result of Bill No. 1041 received by the National Council on 28 June 2021 and voted in extraordinary public session on 31 January 2022.

Purpose of the reform:

The text reforms the provisions of the Criminal Code and the Code of Criminal Procedure in order to transcribe the obligations arising from the international instruments binding the Principality of Monaco.

> In the context of the Monetary Agreement of 29 November 2011 with the European Union (Sovereign Order 3.559 of 5 December 2011), Monaco had to transpose the following two European directives (listed in Annex B of the Agreement):

• Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by means of criminal law (number 10 of Annex B) which defines criminal offences and sanctions in relation to money laundering and aims to facilitate police and judicial cooperation and prevent criminals from taking advantage of more lenient judicial systems;
• Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA (number 19 in Annex B) which defines criminal offences and sanctions in relation to fraud and counterfeiting of non-cash means of payment and aims to facilitate the prevention of such offences and the provision of assistance and support to victims.

> Within the framework of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (Warsaw Convention, CETS No. 198), ratified by the Principality of Monaco on 23 April 2019, the aim is to ensure the correct application of its provisions in accordance with the Recommendations of the Conference of the Parties (COP).

The Council of Europe has updated and extended the Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (CETS No. 141) (enforceable in Monaco by Order No. 15.452 of 8 August 2002) to take account of the fact that terrorism is no longer financed solely by money laundering, but also by legitimate activities. The aim is to provide rapid access to financial or asset-related information held by criminal organisations, including terrorist groups, in order to destabilise the activities of these organisations.

SUMMARY

Amendments to the Penal Code (CP):

• Reversal of the burden of proof for crimes and offences punishable by at least three years' imprisonment that may be subject to confiscation (Article 12 CP);
• Money laundering of the proceeds of an offence: definition of the mental element (suspicion, negligence), new aggravating circumstance for natural persons subject to Act No. 1.362, criminal liability of the legal person, exception to the principle of double criminality, new underlying offences (Art. 218, 218-1, new Art. 218-1-1, 218-2, 218-3 CP);
• Offences relating to non-cash payment instruments: definition of the terms "non-cash payment instrument", "protected device, object or record", "digital means of exchange", "electronic money", "virtual money"; offences relating to the fraudulent use of material and non-material non-cash payment instruments; fraud relating to information systems; tools used to commit the offences; criminal liability of the legal person (Art. 389-13, 389-14, 389-15, 389-16, new Art. 389-17-1 CP);
• Establishment of the principle of individualisation of penalties (Art. 391-17 CP);

Amendments to the Code of Criminal Procedure (CPP) :

• Removal of the restrictions on the jurisdiction of the Monegasque courts in Article 6 of the CPP applicable to Monegasque nationals for acts of corruption, influence peddling, money laundering or offences relating to payment instruments other than cash committed abroad (new Article 6-1-1 CPP);
• Removal of the restrictions on the jurisdiction of Monegasque courts in Article 8(1) of the Code of Criminal Procedure applicable to persons who are accomplices in Monaco in money laundering or an offence relating to non-cash means of payment committed abroad (new Article 8(1) CPP);
• Introduction of a procedure for monitoring banking transactions (new Article 106-11-1 CPP);
• Allowing the use of sound and image recording of certain places or vehicles, as well as covert investigations, for money laundering and payment instrument offences, in the absence of an organised criminal group (art. 106-12, 106-17 CPP);
• Prevention and settlement of conflicts of jurisdiction between Monaco and the Member States of the European Union in the fight against money laundering (new art. 596-7 CPP).