Edited by I Herausgegeben von Emil W. Plywaczewski CURRENT PROBLEMS OF THE PENAL LAW AND CRIMINOLOGY AKTUELLE PROBlEME DES STRAFRECHTS UND DER KRIMINOlOGIE Wydawnictwo CH.Beck Warszawa 2014 Financial support ofThe National Centre for Research and Development Reviewers: Professor Francis T. Cullen Professor Dr.jur. habi!. Dr. jur. h. c. mult. Bernd SchOnemann Publisher: Anna Wieczorek Financial support ofThe University of Bialystok ~ . ::::. PRAWO ~ZOBOWII\ZUJE Nie kseruj,! © Wydawnictwo C.H.Beck 2014 University of Biatystok Wszelkie prawa zastrzezone Wydawnictwo CH.Beck Sp. Z 0.0. ul. Ronifraterska 17,00-203 Warszawa Sktad i tamanie: Wydawnictwo CH.Beck Druk i oprawa: Elpit Siedlce ISBN 978-83-255-6347-9 Contents Emi/ W. Plywaczewski "Current Problems of the Penal Law and Criminology" in retrospect and from a contemporary standpoint ........................................................ XI EmU Vv. Plywaczewski "AktuelIe Probleme des Strafrechts und der Kriminologie" aus retrospektiver und zeitgenossischer Sicht ...............................................',. XXIII PENAL LAW / STRAFTRECHT ........................................................ 1 Gll/sun Ayhan Aygormez-Ugurlubay Rechtfertigungsgriinde im tiirkischen Strafrecht Gunnar Duttge Grund- und ZweifeIsfragen zur Bestrafung des "verschuldeten" 3 A1koholmissbrauchs ..................................................................................0<. 16 Gudrun Hochmayr, Maciej Malolepszy Moglichkeiten und Grenzen des elektronisch iiberwachten Hausarrests. Eine rechtsvergleichende Betrachtung anHisslich der polnischen Reformvorhaben ................................................................. 31 Makoto [da Uber das Internetstrafrecht in Japan fan C. foerden Die Differenz zwischen Mord und Totschlag im deutschen Strafrecht als Orientierungshilfe bei der Identifizierung von inakzeptablen Methoden der Kriegsfiihrung, insbesondere im Hinblick auf den 54 Einsatz von sog. Drohnen ............................................................................ 65 Vera Kalvodova The measures against legalization of proceeds from crime under Czech law...................................................................................................... 82 Karl-Ludwig Kunz Zur Begriindung des Strafens und seiner Alternativen 93 Contents Rikizo Kuzuhara Totung durch bewusstlose Autofahrt Robert M. Lombardo The confiscation and forfeiture of criminal proceeds and property used to facilitate violations of law: The D.S. experience ................................... Klaus Marxen, Katharina Taschner Korperverletzungsstraftaten und medizinischer Fortschritt Miroslawa Melezini Key trends in the penal policy in Poland Emil \11. Plywaczewski, Szcz((sny T. Szymanski Selected aspects of adherence to the principle of legalism in the practice of the judiciary ............................................................................................. Andrzej Sakowicz The right to remain silent in the Polish criminal process Kurt Schmoller Verwirklichung einer unerlaubten Gefahr bei "Risikoerhohung" Yener Unver Die Auswirkungen von furtum usus vom romischen Recht auf das heutige tiirkische Strafgesetzbuch ......................................................'........ Keiichi Yamanaka Die Lehre von der Gefahrrealisierung in der japanischen Judikatur Yuri Yamanaka Aktuelle Problematiken im japanischen Strafvollzug - medizinische Behandlung, Seniorengefangene, Sexualstraftater .................................... Elibieta Zatyka Security guards in Poland - qualifications, powers, protection and criminal responsibility ................................................................................ CRIMINOLOGY / KRIMINOLOGIE James F. Albrecht Criminological explanations for police deviance and corruption: Comparing the USA and Ukraine ............................................................... Genovaite Babachinaite The threats of crime for human security in Lithuania 103 116 136 152 180 195 209 232 242 259 272 283 285 295 Emilio E. Dellasoppa The complex relationships between elections and security: The case of the state of Rio de Janeiro in Brazil's democracy .................................. Diana s. Dolliver, Kathryn C. Seigfried-Spellar Legal, forensic, and criminological aspects of cyberterrorism Obi N. I. Ebbe The legal aspects and international ramifications of asset forfeiture and confiscation of proceeds of crime in the United States ...................... Wojeiech Filipkowski Use of information technologies in forensic science in Poland - selected theoretical problems .................................................................................... Jurg Gerber, Xiaochen Hu A transnational perspective on casino-based gambling and crime Jarrod Gilbert, Greg Newbold The control of patched gangs in New Zealand Peter Grabosky, Jianhong Liu, Lyn Hinds What does "don't know" mean? Explaining citizen don't know responses in police surveys .......................................................................... Edita Gruodyte Criminal policy in Lithuania: Is a restorative justice applied? Ewa Monika Guzik-Makaruk, Emilia Jurgielewicz Actions to improve the safety of blind and visually impaired persons in road traffic - the case of the research project funded by the National Centre for Research and Development carried out by the University of Bia!ystok ................................................................................................... Tatiana Gennadievna Hatenevich Improper discharge of the duty on children's life and health security: Grounds and criteria of criminalization ................................................,," C. Ronald Huff, Jim Petro, Nancy Petro Wrongful convictions and prosecutorial discretion: Issues and recommended reforms in V.S. and european criminal justice systems Magdalena Ickiewicz-Sawicka War crimes on the territory of Kosovo in the context of international criminal law ...................................................................... Darrell D. Irwin, Ceeil L. Willis Privileg~, the party and reform: China's new leadership confronts Contents 304 327 344 355 372 384 401 419 440 450 459 475 Contents Nikolaj Isaev Criminology forecast: Methodology and application aspect of theory of dynamic systems ..................................................................... Fatematul jannat Eve teasing in rural Bangladesh: Criminal justice policy should be changed ......................................................................................................... Katarzyna Laskowska Trends in cOJ?temporary crime in Poland and their implications jessica Chi-Mei Li, Budeba Petro Mlyakado, Kevin Man-Ieung Kwan Juvenile theft in Hong Kong: Features and prevention Daoqian Liu, Bing Xie Effect of video surveillance and their legal basis Jianhong Liu Sources of methodological difficulties and alternative paradigms for international and comparative criminology ........................................ Anthony Minnaar The difficulties of implementing cybersecurity measures as a foundational preventative cyberterrorism measure ............................... Antonello Miranda The dark side of the laws against human trafficking; The need for a new, not exclusively criminal, approach in a global world perspective Masami Okaue Recent struggles over violence against women in Japan: Examples of the legal regulations regarding domestic violence and stalking Brigita Palavinskiene Cross sector cooperation in the prevention of human trafficking Magdalena Perkowska Swiss anti-cybercrime institutional system Angelika Pitsela, Theofili Chatzispyrou Approaching computer criminality: Dealing with the phenomenon 507 516 530 545 567 573 585 610 620 631 642 in Greece ....................................................................................................... 653 Szilveszter P6czik Ideologies of the radical political Islam Zbigniew Rau The institution of immunity witness in Poland - results of empirical C'#"nrii",c rnnril1rt-e>ri -in t-h", ve>~r<.: 7001_7017. 669 hR2 Slawomir Redo Education for succeeding generations in the Culture of Lawfulness Comelis Roelofse Illicit trade in cigarettes and its links to organised crime - some theoretical and practical perspectives on the worldwide phenomenon and its relevance to South Africa ................................................................ Jerzy Sarnecki From treatment needs to risk assessment: A criminologist's reflections on forensic psychiatry in Scandinavia ........................................................ Rick Sarre The use of surveillance technologies in the fight against crime: What are the trends, opportunities and threats? ................................................. lVang Shiquan, Shang Xiaoping, Liu Yangfei Practice and prospect of community policing strategy in China Anamika Twyman-Ghoshal Dysnomie and the contemporary maritime piracy challenge Minoru Yokoyama Increase in crimes commited in Japan by elderly people and the way they are treated in criminal justice ............................................................. About the editor ........................................................................................... About the reviewers ..................................................................................... Contents 698 723 744 755 768 775 790 805 809 vera Kalvodoval The measures against legalization of proceeds from crime under Czech law ABSTRACT The chapter deals with selected aspects of legalization ofproceeds from crime which . known as r:zo.ney laundering. While focusing on the existing legal regulation i~ crimin~~ l~w;nd cnmmal procedure, the paper also discusses the criminallegisiation contained in t e. ct No. 253/2008 Sb.on Measures against the Legalization ofProceeds from Criminal tctlvltles a~d t~e Fmanc.zng ofTerrorism and mentions the relevant regulation under EU a~. AttentlOn IS also paId to sanctions that allow the seizure ofthe proceeds fir . gamed by the offender. om Crlme INTRODUCTION Legalization of proceeds from crime, known as money laundering, is a serious negatl."e phe~omenon .with many consequences. It is closely connected with orgamzed cnme: ongIn~lly mainly with drug trafficking and lately with almost all forms of orgamzed cnme, also contributing to its rise. Since money laundenng freque~tly h~s an international dimension, counteracting this phenomenon reqUIres an International approach and cooperation.3 f C .1 ~e~aLKalvodovd is Associate Profesor ofcriminal law. She is the head of the Department o nmm~ aw at the Faculty ofLaw, Masaryk University. Bma. Czech Republic She af k a ra~ a~vl:~r at the S:'preme Cour~ ofthe ~zech Republic. She deals especially wi~h the :~e:~;:S o ~nmm; aw ~an~tlOns, a~ter.nat1Ve pUnishments, imprisonment, life imprisonment and prison ~ys ems. uropets.atwn of cnmmal law and other legal systems are also the to ic of her research ;nt;r~st. She pu~!tszed two books (Life imprisonment, Brno, Masaryk universit/1994 Position of m nson~ent m t e System of Criminal Law Sanctions, Bma, Masaryk univ:rsit 2002) some chapters !n book~, many articles in journals and papers in conference proceedings Yboth in'Czech and Engltsh. She is also co-author ofseveral text books. She is a member ofthe Board ofDirectors of ~;~1ins:,e;~s;,i'::~~1.several academic stays abroad (for example National Advocacy Center, South 2 Th' . I . . is artIC e was WrItten as a part of a specific research project entitled "Alternatives in Subst:ntlVe and Proc~dural ~rim~nal Law of Natural and Legal Persons" (MUNIIA/0878/2012). Cf. Kalvodova, v.: AntI-Money Laundering Legislation in the Czech Republic. In The measures against legalization of proceeds from crime under Czech law The Czech legal regulation concerning legalization of proceeds from crime has been, logically, influenced by the European regulation. The European Communities have strived to counteract money laundering since the beginning of the 1990s. The main action was the adoption of Directive 911308/ECC on Prevention of the Use of the Financial System for the Purpose of Money Laundering, which was amended in 2001 by Directive 2001l97/EC. The directives gave riseto ActNo. 61/1996 Sb. on SomeMeasures against Legalization of Proceeds from Crime, amending some other acts, and to the amendment to the Criminal Code No. 140/1961 Sb. The new Directive No. 2005160/EC of the European Parliament and of the Council of 26 October 2005 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing, adopted in 2005, affected the formulation of the new Act No. 253/2008 Sb. on Measures Against Legalization of Proceeds from Crime and Terrorist Financing, and later also the criminal law regulation contained in the new Criminal Code No. 4012009 Sb. We cannot disregard other European acts, mainly the European Convention on money laundering, the identification, seizing and confiscation of the proceeds of crime (No. 33/1997 Sb.), Joint Action 1998/6991JHA of the Council on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and proceeds from crime, and the Council Framework No. 2001/500lJHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime.4 LEGAL REGULATION BEYOND CRIMINAL LAW Apart from the regulation under criminal law, the basic currently valid instrument is ActNo. 253/2008 Sb. on Measures against Legalization ofProceeds from Crime and Terrorist Financing. The act replaces previous legal regulation contained in the Act No. 61/1996 Sb. on Some Measures against Legalization of Proceeds from Crime, as subsequently amended. The replacement was carried out in connection with the above-mentioned Directive No. 2005160/EC of the European Parliament and Council and Commission Directive No. 2006/701 EC, which lays the implementing measures for the directive. Not only does it represent an important legal norm with a strong preventive nature, but it also sets some framework for the criminal prosecution of legalization of proceeds from crime. The provision of Section 3, subsection 1 of the act defines "legalization of proceeds from crime as any action aiming to disguise the illicit origin of any economic advantage ariSing from criminal activities with the aim of causing the impression that it is some property value obtained in harmony "Prani penez v evropske a ceske pravni uprave. In Nm'e jevy v hospodarske a financni kriminalite: vnitrostatni a evropske aspekty." MU Brno. 2008, p. 414 4 For more details, see Kalvodova, V.: "Prani penez v evropske a ceske pravTIi liprave." lin:] "Nove jevy v hospodai'ske a financni kriminalite: vnitrostatni a evropske aspekty." MU Bmo. Penal law I Straftrecht with l~w." The act also enumerates such activities. They include, among other, an actlOn conslstmg of the transformation or transfer of property with the k~o:"ledge that it originates in crime for the purpose of disguising or hiding its ongm or for the purpose of aldmg a person who is involved in such activities in order to avoid the legal consequences of their actions; the disguising or hiding of the real nature, source, location, movement or disposition of property _ or any ch~nge.of property rights - with the knowledge that such property or.lglnates In cnme; the acquISItIOn, possession, use or disposition of property With the knowledge that it originates in crime; or the criminal union of people or some other form of cooperation for the purpose of such actions. It is not decisive whether the commission of the criminal act occurred or is to occur entirely or in part within the territory of the Czech Republic or abroad. The act also delimits the list of persons obligated (Section 2) and imposes a number of duties upon them, important mainly as regards prevention. The duties include: identification (Section 7), control (Section 9), reporting (Section 18), information (Section 24) retention of data (Section 16) and the duty of non-disclosure (Section 38). The duty of identification of a client applies to any person involved in a deal ex~eeding the a,;,ount of EUR 1,000. The identification needs to be performed pnor to the settlmg of the deal, unless the law provides otherwise. However in case of suspicious deals, security box and escrow contracts, purchase of u~ed goods or goods without a proof of purchase, cultural monuments and objects of cultural value, and escrow contracts, the person obligated always needs to identify the parties to the agreement regardless of the above-stated financial limit. The duty of control means that the person obligated will check the client before c~ncluding any individual deal amounting to at least EUR 15,000, any deal subject to the duty of identification under Section 7, subsection 2(a) to (d),5 any deal with a politically exposed person and during the term of the busi~ess relation. The client must provide information to the person obligated that IS necessary for the check, as well as submit all relevant documents. The person obligated may, for the purpose of the act, make copies or transcripts from the documents submitted, and process such information in order to meet the purpose of t~e act (Section 16, subsection 1). When checking on the ~hent, the person obhgate~ obtains information about the purpose and the mtended nature of the busmess or business relation, information about the real owner where the client is a legal person, information necessary for the performa~ce of the continual monitoring of the business relation including the checkmg of busmess done during the term of the business relation in order to determine whether the business deals are in harmony with ~hat the person obligated knows about the client and the client's entrepreneurial 5 This includes a suspicious business deal, the formation of a business relation, the con~luslOn of an agre~ment on a bank account, depOsit in deposit bank account or a deposit certificate, the conclUSIon of some other form of deposit, or the conclusion of a contract of lease The m,easures against legalization of proceeds from crime under Czech law and risk profile as well as about the review of the sources of financial means (Section 16, subsection 2). The duty of reporting applies to suspicious business deals. 6 Wherethe person obligated finds out, in connection with its activities, about any SUSpICIOUS business deal, it must report it to the Ministry of Fmance Without any delay but no later than 5 calendar days after learning of the suspicious deal. Where the circumstances require, particularly if there is a danger in delay, the person obligated shall report the suspicious business deal immediately after learnmg of it (Section 18, subsection 1). Under Section 24, which regulates the duty of informing, the person obligated shall, upon request, inform the ministry within a time limit set by it of any business deals involving the duty of identification or those that are being investigated by the ministry, and shall submit da.ta about such business deals or enable access to authorized employees of the minIstry when revlewmg the report, as well as provide information about persons involved in such deals in any way. . . The duty to retain identification data and documents is regulated m SectlOn 16. Under this duty, persons obligated must retain the data specified under the provision of the law for a specified period of time, which is usually 10 years after the termination of the business deal, even though there IS a shorter peflod of 5 years that applies to some specific cases. Finally, under the duty of non-disclosure (Section 28), persons obligated and their employees, the employees of the ministry, the employees of other bodies of supervision, and natural persons who perform activities for the person obligated, the ministry or some other body of supervision under a contract other than a contract of employment, are required to keep secret any facts concerning the reporting and investigation of any suspicious business deal, any actions undertaken by the ministry and the performance of the duty of information under Section 24. The breach of any of the above-mentIOned duties, or any other duties provided for by the law, may constitute the elements of the criminal offences of legalization of proceeds from crime - see below. 6 A suspicious business deal is, under Section 6 subsection 1, any busi~es~ deal performed under circumstances that give rise to any suspicion of attempted legalJz:atlon of proceeds from crime or any suspicion that the means involved in the business dea,l ~re mea~t for the financing of terrorism, or some other fact that could give rise to such SuspICIOns, for Illstan.ce: a) a client makes vdthdrawals or transfers to other accounts immediately after c~sh. depOSIts; b) a client makes noticeably more financial operations during a single day or w,Ithl~ several days than is common for their activities; c) the number of ac~oun,ts opened by a ~hent:s ,c~ear1y disproportionate with respect to the subject matter of the chent s entrepreneunal a~tlvltJeS or the clients' property; d) a client makes transfers of property that dearly lack economIC reasons; e) the means handled by a client are clearly disproportionate to the na,ture or extent, of the client's entrepreneurial activities or the clients' property; f) an account IS used for ,a ,d~fferent purpose than the purpose for which it was opened; g) a client performs som: actIVItles that may help to disguise their identity or the identity of the real owner; h) the chent or the true owner is a person from a country that insufficiently applies or fails to apply at all me~sures against legalization of proceeds from crime and terrorist financing; or i) the person obhgated has doubts about the truthfulness of the data obtained from the client for the purpose of the Penal law / Straftrecht LEGAL REGULATION UNDER CRIMINAL LAW The criminal offence of legalization of proceeds from crime was introduced into Czech criminal law in 2002 with the amendment of the then valid Act No. 14011961 Sb. (the Criminal Code). The introduction resulted from the obligations arising from the European convention on money laundering, the identification, seizure and confiscation of the proceeds from crime. The offence was systematically placed among property crimes and was essentially denved from the elements constituting the crime of sharing (Section 251). The basic elements contained two alternative acts, namely (1) the disguise of the origin or some other action aimed at significantly impending or disabling the ascertainment of the origin of a thing or some other property value obtained through crime, with the intention of creating the impression that such a thing or p:operty value were obtained through lawful means, and (2) making it possIble for another person to commit such an act (Section 252a). As regards fault, the offence was classified as an intentional crime. Any person committing such a criminal offence was liable to a term of imprisonment of up to two years or a monetary punishment. Enabling another person to disguise the origin or the ascertainment of the origin of a thing or some other property value through negligence has remained a part of the criminal offence of sharing out of negligence, as defined in Section 252 subsection 2. On 1 January 2010, the new Criminal Code No. 40/2009 Sb. came into effect (abbreviated as CC). Chapter V (property crimes) includes the offence of legalization of proceeds from crime (Section 216 of CC) and the offence of legalization of proceeds from crime as a result of negligence (Section 217 of CC). The object, i.e. the protected interest, of the two criminal offences is the proper 8 ty of another person, both in relation to things? and other property values obtamed through the offence or as a reward for it. In that way, protection is provided also to property relations in financial markets markets for products and services and other markets, because there is the i~terest to protect the purity of property relations.9 The provisions of Section 216 of CC contain two independent fundamental elements that constitute the respective offences.'o The former are met by any . 7 A t.hing ~s also understood to be a manageable natural force. The provision on things applIes to lIve alllmals, processed severed parts of the human body, financial means in an account and securities, unless the individual provisions of the criminal law allow a different constructio~ (Section 134, subsection 1 of CC). 8 Some other property value is understood to be a property interest or some other value th~t, while it can. be expressed in money, does not constitute a thing and the provisions on thi:ngs under SectIOn 134, subsection 10f CC (Section 134, subsection 2 of CC) do not apply to It. 9 Samal, P. et al.: Trestni zakonik n. § 140 ai 421. Koment:H. 2. VydanL Praha: CH.Beck, 2012, p. 2154. • 10 The basic elements ofthe offences give rise to three qualified offences, Le. where the ""rr""""ct-Clnrp<: nprmit thf' annlication of stricter penalties. For instance, such circumstances The measures against legalization of proceeds from crime under Czech law offender who disguises the origin or acts in some other manner in order to significantly impend or disable the ascertainment of the origin of a thing or some other property value obtained through crime committed within the territory of the Czech Republic or abroad, or obtained as a reward for crime, or some other property value that is obtained for the said things. Any person can become the offender of this crime, including the offender of the basic offence from which the thing or some other property value comes or to whom it is provided as a reward. As regards the subjective point of view, intention is required. The disguise of the origin of a thing or some other property value means that the information about the origin is withheld or obscured, e.g. through the transfer of property, the nondisclosure of ownership information, the non-disclosure of the real nature of the thing, its location and movement, etc." Other attempts aimed at significantly impeding or disabling the ascertainment of the origin of a thing or some other property value are constituted, above all, by certain intentional steps taken III preparation of the disguise of the origin of things or other property values.12 The elements constituting the second offence are met by any offender who makes it possible for any other person to commit the said offence. This is a special form of sharing that is deemed to constitute an accomplished offence.13 The objective aspect of the offence is formulated quite broadly since it includes various forms of assistance. In practice, this will involve, above all, the intentional failure to meet some of the duties imposed by the Act No. 253/2008 Sb., as specified above. However, it may also include any other action (both action and omission to act), whereby the offender contributes towards the disguise of the origin of a thing or some other property value or to some other effort aimed at Significantly impending or disabling the revelation of their origin.l4 Any person can become the offender of this crime, though it will most commonly be a different person than the offender of the basic offence through which the thing or some other property value is obtained. This will include, above all, workers and employees of the legal persons obligated, e.g. credit and financial institutions, persons keeping records of securities, persons authorized to proVide leasing, holders of betting licences, but also natural persons who perform independent entrepreneurial activities (auditors, tax advisors, accountants, executors, notaries public, attorneys-at-law, etc.).15 group or in connection with an organized group active in several states, and the.commissio? of the act involving a thing or some other property value originating from a partICularly senous offence. 11 CL 5amal, P. et aL: Trestni zakonik 11. Sections 140 to 421. Komentar. 2nd ed. Praha: C.H.Beck, 2012, p. 2156. See also Kuchta,J. et a1.: Kurs trestniho prava. Trestni pravo hmotne. Zvlastni cast. pt ed. Praha: C.H.Beck, 2009, p. 182. 11 Samal, P. et al.: Trestni zakonik H. Sections 140 to 421. Komentar. 2nd ed. Praha: C.H.Beck, 2012, p. 2156. 13 Kuchta, J. et al.: Kurs trestniho prava. Trestnf pra.vo hmotne. Zvlastni cast. 1sI ed. Praha: CH.Beck. 2009, p. 181. 14 Samal, P. et al.: Trestni zakonik n. Sections 140 to 421. Komentar. 2nd ed. Praha: C.H.Beck, 2012, p. 2157. 15 Knrht::l. 1. et aL: Kurs trestniho prava. Trestni pravo hmotne. Zvlastni cast. pt ed. Praha: Penal law / Straftrecht Any offender who commits such acts is liable to a term of imprisonment of up t? four years, a monetary punishment, a ban on activity or the forfeiture of a thmg or some other property value. However, where an offender commits such an a:t ;"ith respect to a thing or some other property value that originates from a. cr~mmal offence to which a more lenient punishment is provided for by the Cnmmal Code, they w1ll be punished with the more lenient punishment. The. provisions of Section 217 of CC define the specific subtype of legahzauon of pro~eeds from crime arising from negligence. The objective part ofth1s offence cons1sts m the enabling to disguise the origin or the determination of the origin of a thing or some other property value in a greater extent (Le. at least CZK 50,000), obtained as a result of crime committed within the territory of the Czech Repubhc or abroad, or as a reward for it. The applicable rate of pumshment is a term of imprisonment of up to one year, a ban on activity or the forfeiture of a thing or some other property value. As regards the sUbjective part of the offence, it consists - as mentioned previously _ of negligence.16 A companson of the existing and previous regulations of legalization of proceeds fr?m crime reveals several changes that reflect current European trends m th1s area. As far as the intentional criminal offence is concerned (Le. SectlOn 216 of CC), the most important change is the significant extension of the range of proceeds that are covered by the provisions of the Criminal Code (not only things and other property values arising from crime but also those obtaine~ as a reward for the offence or gained with the proceeds of crime). The ba~1c element ?f the offence no longer consists of the aim of creating the 1mpress10n of legahty: prevlOusly, the offender had to be found to act with the aim of creating the impression that the proceeds from crime (the thing or some other property value) were gained lawfully, or - in the case of sharing - with the knowledge that some person, who was allowed to commit the offence of legalization of the proceeds from crime, acted with such an aim. However, that element turned out quite difficult to prove. Moreover, offenders typically do not merely act to disguise the origin of the proceeds or make the determination of the origi? difficult or impossible and may not follow the aim of creating the 1mpresslOn of lawfulness. The extent of the elements of this offence has thus been narrowed down. The applicable rate of punishment has been made stricter - the offence is now punishable with a·term of imprisonment of up to four years - and the range of other possible punishments has been extended. Thus, apart from the monetary punishment, there is also the ban on activity and the forfeiture of a thing or some other property value. At the same time however, the possibility for a more lenient punishment has been retained. As i~ appears horn the explanatory note to this provision, the rate was set in harmony w1th Arucle 2 of the Framework Decision of the Council (2001/5001JHA see above), which provides that serious offences specified in the 1990 Conven~ion . 16 The basic elements of the offence give rise to two qualified offences, i.e. where the ~Hcumstances permit t~e application of stricter penalties. For instance, such circumstances l-nr]",-iP thP hrp<'Irh of <'In Imnflrt::lnt r111tV ::Iri<.:inp" frnm nnf"" f'mnlnvmf'nt. occnnation. nosition or The me;asures against legalization of proceeds from crime under Czech law of Council of Europe on money laundering should be punishable with a term of imprisonment with the upper limit of at least four years. At the same um.e, it is possible to take into consideration that the proceeds may ongmate m a criminal offence for which the law provides a more lement pUillshment. The subtype of the offence based on negligence was conceptualized into a separate category based on its constitutive elements (Section 217 of.CC). The criminal nature of the act is, unlike the previous legal regulatlOn, hm1ted by the value of the thing or some other property value, which must be no less than CZK50,000. A new dimension in the punishability of legalization of the proceeds from crime also results from criminal liability of legal persons, introduced into Czech criminallawon 1January 2012, when Act No. 418/2011 Sb. on Criminal Liability of Legal Persons and Proceedings against Them (abbreviated as TOPaZ) came into effect. The Czech Republic introduced criminal liability as the last member state of the EU, opting for genuine criminalliability.'7 The provisions of Section 7 of TOPaZ contain an enumeration of the offences which can be committed by alegal person. The list includesboth ofthe two offencesoflegalization ofpr?c~eds from crime. A major provision, as regards the effective prosecut10n of cnn;;mal activity, is contained in Section 8, subsection 2 of TOPaZ, under which It 1S no obstacle to the criminal liability of legal persons 1f 1t cannot be determmed what specific natural person acted on behalf of the legal person:" This holds also where the acting legal person is not criminally liable (cf. Sect10n 8, subsectlOn 4(d) of TOPaZ). In addition to the sanctions that can be impo.sed or; natur~l persons, legal persons may also be punished by means of theu d15s01utlOn. Th1s punishment applies only to legal persons with their registered off1~e:n the C~ech Republic whose activities consist entirely, or mostly, of the comm1SS10n of cnme, as long as the nature of the legal person does not exclude the imposition of such a punishment." Dissolution is applicable particularly where the legal pers~n gets involved, for instance, in organized crime. This is typically the case of cnmmal organizations founded for the purpose of legalization of proceeds from crime. The purpose of the punishment through dissolution is to prevent the leg~l person from committing further activities consisting of the contmuous comm1SS10n of crime under the guise of legality. When punishing and sanctioning legalization of proceeds from crime, what matters is not just the penalty for the offenders but also the seizure of the proceeds. One of the punishments that may be imposed on natural and legal persons is the forfeiture of a thing or some other monetary value. That punishment applies to things and other property values that were used or meant 17 For more details, see Kalvodova, V.: Principy sankcionovani pravnickych osob (Evropa a Ceska republika). [in:] Frystak, M. (ed). Nove jevy v hospodatske a financnf kriminalite. Bmo: MU, 2011, http!www.law.munLcz!content!cs(proceedings. 18 For more information on the range of legal persons whose nature does not allow the imposition of the punishment of dissolution of the legal person, see Samal, P. et al.. Trestni odpovednost pravnickych osob. Komentar. 1st ed. Praha: C.H.Beck. 2012, p. 351 and subsequent pages. This includes,_a~ong others, the Czech National Bank, the General Health Insurance Penal law I Straftrecht to be used for the commission of crime . or as a reward or obtained by th ft dgamed by the offender through crime crime (Section 70, subsection 1 o~~C~nT~~t~en in part, from the proceeds of must belong to the offender. In addition t mg or s~me other property value other monetary value, the Criminal Code ca the forfeIture of a thIng or some confiscation of a thing or some other ro ontams the protectIve measurel9 of applies to the same range of thin s Panderty value. ThIs protective measure may rule that such a thing or som g th other property values. The court punishment of the forfeiture of etho er property value be seized where the . a Ing or some oth . unposed and the said thing or some th er property value IS not who cannot be prosecuted or punis~eder r;:operty value. belongs to an offender court, who is a threat to the securit of w ose prosecutIOn Was stopped by the there is a threat that such a th' y persons, property or society, or where for the commission of crime (Se~~g o~;~mebother property value will serve of Section 101 subsection 2 of C~on r' su section 1 of CC). The provision under that Pro~ision _ even wI'th t app le~ expressly to proceeds from crime; ou meetmg the cond't' d . .101, subsection 1 of CC . I Ions state m SectIOn - a court may Impose the fi . where it does not constitute immed' t con scatlOn of a thing even la e proceeds from crime, above all where: a) ~~:~:;:f:~~:doi~h~~~::~r~~I~~~~~St~:i~;f~r~~~~Ughcrime or as b) ~~~:~::eO~es~,:~~~~e~h~~~rtYf~alue is acquired, ~ven in part, by value gained throu h crime ' r a thmg or some other property ~:;?~~~!~~~~:::~~:~~fgl~~~:~i~~~:;f~:1:;~~€~h:irI2e~:1er property va ue acquired' c) ~~~:~~:e~~es~,:~~~:e~Z~:~?f~:IU~~s acquired, even in part, by value gained, even in part, b; the aoff:~Je~\~~:e othe: property a II'eward for it, as long as the value ofthe thing or so;::~d;~lme or as va ue gamed through . . . r property respect to the value oft~~~i~rg ~s a rewardhfor It IS not negligible with r some at er property value acquired. The protective measure of confiscation of h' value thus complements the protection 'd a t mg or some other property it extends the possibility to seize the r;~~;~s~d by th: same punishment since someone else to such cases when th~ . h rom Clune from the offender or some other property value cannot be ~~7i~dment of the seizure of a thing or Another punishment that ma be im d . of proceeds from crime both on :at I pose ll1 some cases of legalization property. In general, a court may impo~:~hand legIal persons is the forfeiture of IS pena ty In VIew ofthe circumstances 19 Th " .•1..;~1_ e sanctlOmng system of the Czech criminal I " . -~~-~ .. \..~.. <-.. ", ""~~r ~O: ~~;...... ; l ' alii IS based on the dualIsm of sanctions .,.." c,,""'~+""',....c "'''A rl;c+;-n"''';~h",,-l. nllni~h""",pnt~