EUROPEA U IO Brussels, 26 January 1999 THE COU CIL 5429/99 LIMITE JUSTPE 3
OTE from: the Presidency
to: Working Party on Criminal and Community Law No. prev. doc.: 10722/98 JUSTPEN 80, 11381/98 JUSTPEN 91 Subject: Criminal law measures to combat counterfeiting of the euro
Delegations will find attached an overview of the answers to the questionnaire set out in Presidency document JUSTPEN 80 on "criminal law measures to combat the counterfeiting of the euro", and the additional questionnaire set out in document JUSTPEN 91.
This overview is based on the answers of 14 Member States to the questionnaire set out in document JUSTPEN 80, and to the additional questionnaire set out in document JUSTPEN 91.
5429/99 JGV/kg EN DG H III 1 1. CRIMI AL OFFE CES
1.1. Definition of the counterfeiting of currency
Question A1 : Does your national law contain a definition of the concept "counterfeiting currency"? Does the unauthorized manufacture of genuine currency fall within the concept of currency counterfeiting?
In Austria , the law criminalises the imitation or counterfeiting of currency, which means the manufacture of "counterfeit money", with the intention of putting it into circulation for the first time as genuine currency.
The Austrian penal code does not provide for a definition of "money". What is covered is only banknotes and coins as far as the circulation of them is legally authorised (this excludes collector's coins and notes not meant for circulation).
All provisions concerning punishable acts jeopardizing secure transactions of money are also applicable to foreign currency.
Unauthorised manufacture of genuine currency does not fall within this concept. The relevant articles are art. 232 sect.1 and 241 of the penal code.
No legal definition of the concepts of "counterfeiting of currency" or "counterfeit currency" exists in Belgian domestic legislation, although the constituent elements of the crime of currency counterfeiting may be given on the basis of case law. The act must involve the making of counterfeit currency (imitating genuine currency), debasing/falsification (reducing the currency's intrinsic value by altering its weight or composition or changing certain data on the currency) or the actual use of counterfeit currency. The moral element resides in the particular intention involved. The currency in question must in every case be legal tender in Belgium or abroad.
A particular feature of Belgian law is the distinction drawn between metal coins (Articles 160-172 of the Penal Code) and banknotes (Articles 173-178 of the Penal Code).
In Denmark , any person counterfeiting or forging money for the purpose of passing it off as genuine, or who procures counterfeit or forged money for himself or others is punishable. Counterfeiting of money is the production of coins or notes which have the appearance of genuine money.
Under Section 8 of Law 116 of 7/4/1936 concerning the National Bank of Denmark, the National Bank alone has the right to issue currency notes, while as far as coins are concerned, the National Bank is responsible for administering the institution of the Royal Mint, which mints and issues coins in accordance with Law 817 of 21/12/1988. Any infringement of the National Bank's privilege with regard to currency notes and coins is punishable under Sections 169 and 170 of the Penal Code.
The relevant articles in the penal code are Section 166(1), 169 and 170.
In Finland , these concepts are defined in the "travaux préparatoires" of the provision. The unauthorised manufacture of genuine currency falls within the concepts.
5429/99 JGV/kg EN DG H III 2 France points out that the jurisprudence characterises the different aspects of the crime. E.g. the courts consider that the counterfeit does not have to be perfect, it can result from a number of sufficient appearances that result in the circulation of it detrimental to the authentic currency. The relevant articles of the penal code are Articles 442-1 till 442-14.
In Germany , the penal code criminalises:
1. the counterfeiting of money with the intention to bring it into circulation as genuine or of making such a circulation possible, or with this intention counterfeiting money to give it the appearance of a higher value,
2. procuring counterfeit money with this intention, or
3. bringing into circulation as genuine counterfeit money which was counterfeited, falsified or procured under the prerequisites of 1 and 2. The relevant articles of the Penal Code is § 146, 1 Nr 1.
Unauthorised manufacture of money is not treated as counterfeit money. § 35 of the Law on the German Federal Bank covers this crime.
In Greece , the law contains a definition of the concept "counterfeiting of currency" or "counterfeit currency", according to which the crime consists in counterfeiting or alteration of Greek or foreign coins or paper currency with the intent to put them into circulation as genuine and the procurement of such money with the same intent. The manufacture of genuine money by an unauthorised person is covered by the concept of counterfeiting currency inasmuch as the task of issuing currency has been assigned exclusively either to the competent State Authority or to another service authorised by the State. The relevant article is Art. 207 Penal Code.
Irish law prohibits the forgery of banknotes and the counterfeiting of coins. The offences of forgery and counterfeiting relate only to false notes and coins.
The Italian law does not contain a specific definition of "counterfeiting of currency" or "counterfeit currency". However, the definition can be deducted from the description of counterfeiting offences in the penal code, which covers two types of currency forgery: (a) counterfeiting and (b) alteration.
Counterfeiting is the unauthorised manufacture of an entire coin to resemble a genuine coin. Alteration consists in the unlawful modification of a genuine coin. Italian law distinguishes two offences of alteration: tampering with a coin to make it resemble a coin with a higher denomination, and reducing a coin's intrinsic value.
There is no specific provision covering the unauthorised manufacture of genuine currency. No such cases have ever come before a Court. In principle in the Italian legal order the definition of genuine currency may be said to be currency manufactured by an authorised body. The relevant articles are Art. 453 (1) and (2), and 454 penal code.
5429/99 JGV/kg EN DG H III 3
The etherlands emphasises that there are, in any case, individual penalisations which make those actions normally understood under the term "forgery" a criminal act. The manufacture of money by anyone other than the official authorities is also a criminal act. The relevant articles in Dutch penal law are Articles 208, 209, 213 and 214.
Article 262 of the Portuguese Penal Code defines the criminal offence of counterfeiting currency as follows:
"1. Anyone who makes counterfeit currency, with the intention of putting it into circulation as genuine, shall be punishable by imprisonment for from 2 to 12 years.
2. Anyone who falsifies or alters the face value of genuine currency to increase its value, with the intention of putting it into circulation, shall be punishable by imprisonment for from 1 to 5 years.".
Article 263 of the Portuguese Penal Code makes it a punishable offence to debase coinage:
"1. Anyone who debases genuine coinage so as to reduce its value in any way, with the intention of putting it into circulation as sound, shall be punishable by imprisonment for up to 2 years or a fine of up to 240 times a daily sum.
2. The same punishment shall be incurred by anyone who, without lawful authority and with the intention of passing it on or putting it into circulation, manufactures coinage with the same value as or a greater value than the genuine article.
3. Attempted offences shall be punishable.".
The Spanish penal code deals with counterfeiting of currency in Articles 386 to 388. Article 386 lists the acts that are punishable. Spanish legal literature considers that "manufacture of counterfeit currency" consists in "copying currency which is legal tender so that it appears to be genuine", or in "making counterfeit currency by whatever process and with whatever materials, in imitation of legal currency".
The penal code does not make a specific reference to "the unauthorised manufacture of genuine currency" as an instance of counterfeiting, which does not mean that such manufacture is not a criminal offence. Only currency issued by the Bank of Spain in accordance with the established procedures is to be regarded as genuine. In all other cases currency is to be regarded as counterfeit.
In Sweden the law does not provide for a definition. It is a punishable offence to copy within or outside the country valid banknotes or coins or to otherwise falsify notes or coins. In the preparatory work of the Act it is made clear that "copying" is taken as meaning the production of notes and coins, and that "to otherwise falsify" is taken as meaning, for example, to alter the appearance of notes and coins. Counterfeit is dealt with in Chapter 14 par. 6 Penal Code.
5429/99 JGV/kg EN DG H III 4 In the United Kingdom , it is an offence for a person to make a counterfeit of a currency note or of a protected coin,
- intending that he or another shall pass or tender it as genuine
- to make a counterfeit of a currency note or of a protected coin without lawful authority or excuse. This suggests that genuine currency can only be made with due authorisation. A "currency note" means any note which has been lawfully issued in the UK, Channel Islands, Isle of Man or the Republic of Ireland, is or has been customarily used as money in the country where it was issued and is payable on demand. It also means any note which has been issued in some other country than those mentioned above, and which is customarily used as money in that country.
A "protected coin" means any coin which is customarily used as money in any country or is specified in an order made by the Treasury for the purposes of the relevant part of the Act.
The applicable legislation is laid down in:
- Part II Forgery and Counterfeiting Act 1981 (section 28 for England, Wales and Northern Ireland, section 31 for Scotland)
- Custom and Excise management Act 1979, Articles 14 and 27.
Question A3 : What kind of offence under your national law is the criminal offence of counterfeiting of currency? How high is the range of penalties?
Delegations will find hereafter a table with the synthesis of the answers given by Member States. As for the maximum penalties, delegations will note that these vary from up to 8 years of imprisonment (Sweden) to 30 years of imprisonment (France) and life time imprisonment (Ireland). The minimum penalties vary from imprisonment of 3 months or less and/or a fine.
Delegations will also consider that in several Member States the judicial authorities can opt for either a fine or imprisonment, even in very serious cases.
Member State kind of offence penalty Austria crime 1 to 10 years imprisonment Belgium I. Counterfeiting of silver or gold I. imprisonment of between 10 to 15 years coins: crime (Article 160 of the Penal Code); II. Debasing of such coinage: crime II. imprisonment of between 5 to 10 years III. Counterfeiting of other metal (Article 161 of the Penal Code); coins: crime III. imprisonment of between 1 to 3 years IV. Debasing of such coinage: crime (Article 162 of the Penal Code); V. Counterfeiting or falsification of IV. imprisonment of between 3 months and 1 banknotes: crime . year (Article 163 of the Penal Code); V. imprisonment of between 15 to 20 years (Article 173 of the Penal Code).
5429/99 JGV/kg EN DG H III 5 Denmark crime up to 12 years imprisonment; If the forgery has been committed by reducing the value of current coinage, the penalty will be up to 4 years imprisonment Finland I. counterfeiting I. 4 months to 4 years of imprisonment II. aggravated counterfeiting II. 2 to 10 years imprisonment III. petty counterfeiting III. fines or maximum 2 years imprisonment All these offences are crimes in Finland. There is no category of lesser offences in Finnish law. France crime maximum of 30 years of imprisonment and a fine of 3,000,000 FFR Germany crime not less than 1 year and maximum 15 years of imprisonment Greece I. crime I. 5 to 20 years imprisonment plus a fine II. misdemeanour (in less serious II. minimum 3 months plus a fine cases) Ireland both forgery of banknotes and maximum penalty of life imprisonment counterfeiting of coins are offences Italy offences against public trust I. counterfeiting or tampering with a genuine coin (453 (1) and (2): 3 to 12 years imprisonment and a fine of 1 to 6 million ITL II. reducing the intrinsic value (454): 1 to 5 years imprisonment and a fine of 200,000 to 1,000,000 ITL Luxembourg Netherlands crime maximum of 9 years imprisonment and a fine of the 5th category Portugal I. crime: making with the intention I. imprisonment 2 to 12 years of putting into circulation II. imprisonment 1 to 5 years II. offence: falsify to increase the III. imprisonment up to 2 years or a fine up to value 240 times a daily sum III. offence: falsify to reduce the IV. same as III. value IV. without lawful authority Spain serious offence 8 to 12 years imprisonment and a fine of 1 to 10 times the face value of the currency Sweden I. normally I. maximum 4 years of imprisonment II. if considered insignificant II. maximum of 6 months of imprisonment III. not less than 2 and not more than 8 years III. if very serious imprisonment. United Kingdom I. I. maximum 6 months imprisonment and/or a - making counterfeit currency with fine of GBP 5,000 in the Magistrates Court; the intention that it be passed off maximum 10 years imprisonment and/or a as genuine; fine (no limit) in the Crown Court - passing or tendering as genuine, II. maximum 6 months imprisonment and/or a with or without the fine of GBP 5,000 in the Magistrates Court; counterfeiter's consent, currency maximum of 2 years imprisonment and/or a known or believed to be fine (no limit) in the Crown Court
5429/99 JGV/kg EN DG H III 6 counterfeit; III. maximum 6 months imprisonment and/or a - possessing currency known or fine of GBP 5,000 or three times the value of believed to be counterfeit with the goods in the Magistrates Court; intent to pass it off as genuine maximum of 10 years imprisonment and/or a - possessing materials intended to fine (no limit) in the Crown Court be used in making counterfeit currency
II. - making counterfeit currency without lawful authority or excuse; - delivering, without lawful authority or excuse, currency known or believed to be counterfeit; - possessing currency known or believed to be counterfeit; - possessing materials known or believed to be designed to make counterfeit currency III. importing or exporting counterfeit currency or fraudulently evading excise duty
1.2. Deliberately putting counterfeit currency into circulation with the counterfeiter's consent Question B1 : Is this practice punishable under your national law? What kind of offence is it? How high is the range of penalties?
Delegations will find in the following table a summary of the answers given by the Member States.
The consent given by the counterfeiter prior to the putting into circulation of the counterfeit currency, does not seem to be relevant in the criminal legislation of most Member States (e.g. Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Netherlands, Sweden, United Kingdom).
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Member State Criminal Offence Penalty Austria Whoever - with the intention of putting it into 1 to 10 years of imprisonment -Art circulation for the first time as genuine currency- 232 sect 2 Penal Code accepts counterfeit money in agreement with a person who took part in the counterfeiting itself (accomplice) or from a middleman is punishable. The mere taking over of counterfeit money, with the above intention, is sufficient. The perpetrator does not have to put it into circulation. Belgium This is known in Belgian criminal law as the Issuing in concert with "issuing" of counterfeit currency. Consultation counterfeiters is subject to the same with the counterfeiters must precede issuing and penalties as actual counterfeiting or implies more than mere knowledge or consent: debasing of the coinage, in there has to be an agreement between the accordance with the distinctions counterfeiter and the issuer to put the counterfeit made in the legislation (Articles 168 currency into circulation. These articles also and 176 of the Penal Code). relate to the import into Belgium of counterfeit coins and/or banknotes in consultation with the counterfeiters. Denmark The deliberate bringing into circulation of Same range of penalties as under A3 counterfeit money by arrangement with the Where the person concerned has counterfeiter is deemed to be a punishable received the money in good faith the offence. Under Danish law it is immaterial penalty may be reduced to detention whether the forged currency is intentionally or a fine. brought into circulation with or without the agreement of the counterfeiter Finland The counterfeiter's consent is not relevant when See A.3 sentencing a person who has put the currency if acquired in good faith: a fine or into circulation. What is relevant is whether he imprisonment of max. 1 year knew the currency being counterfeit at the moment of receiving it. France The penal code makes it punishable to put into 10 years of imprisonment and a fine circulation, and the possession with the intention of 1,000,000 FFR; of putting into circulation of counterfeit in cases of criminal organisations the currency. penalties are 30 years of imprisonment and a fine of 3,000,000 FFR. Art. 442-2 Penal Code
5429/99 JGV/kg EN DG H III 8 Germany The putting into circulation is punishable: I. imprisonment from 1 to 15 I. Crime, if the perpetrator counterfeited, years (§146, 1 Nr 3 Penal falsified or processed the money with the Code) intention to bring it into circulation as II. imprisonment up to 5 years or genuine or making such circulation a fine (§147 Penal Code) possible; II. Misdemeanour, if the perpetrator didn't act under the circumstances mentioned under I. Greece The offence is for a person to put money into circulation if, when acquiring it, he knew it to be counterfeit. The consent of the counterfeiter is of no relevance Ireland "Uttering" (which essentially means using) a I. banknotes: max. life forgery is an offence of comparable gravity to imprisonment making a forgery. Uttering counterfeit coins is II. coins: up to 3 years also an offence. imprisonment The consent of the forger of counterfeiter is immaterial. Italy The practice of deliberately putting counterfeit Same as A3 above currency into circulation with the counterfeiter's consent is an offence under (a) Art. 453 (3) penal code, if it involves counterfeit or altered coins provided for in paragraphs 1 and 2 of that Article; (b) Art. 454 of the code, if it involves coins whose intrinsic value has been reduced. The above provisions apply not only in cases of direct collusion with the counterfeiter but also where there is collusion with an intermediary. Luxembourg
5429/99 JGV/kg EN DG H III 9 Netherlands He who purposely uses species, coins or Same as A3 above banknotes which he has counterfeited or forged, as authentic and unforged specie or coins or banknotes, or of which he was aware of their falseness or counterfeit nature when he received them, for the purpose of using them or having them used, as being authentic or having them in stock, or importing them into Europe, is punishable. It is not necessary that the person circulating the counterfeit money was aware of the criminal purpose of the counterfeiter, not even that this purpose existed. Awareness of the objective fact of the forgery is enough. Portugal Article 264 of the Penal Code, passing on see A3 counterfeit currency with the counterfeiter's consent: "1. The penalties laid down in Articles 262 and 263 shall be incurred by anyone who, acting in concert with the perpetrator of the acts there described, passes on or puts into circulation the currency in question in any way, including offer for sale. 2. Attempted offences shall be punishable.".
Spain The practice is punishable in the same way as see A3 counterfeiting currency under article 386 penal code. Sweden Whoever puts counterfeit notes or coins into same as under A3 circulation is punishable United Kingdom The Act contains no specific reference to the - consent of the counterfeiter
1.3. Deliberately putting counterfeit currency into circulation without the counterfeiter's consent
Question C1 : Is this practice punishable under your national law? What kind of offence is it? How high is the range of penalties?
A.
The absence of the counterfeiter's consent is of no relevance in most Member States (e.g. Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Netherlands, Sweden, United Kingdom).
5429/99 JGV/kg EN DG H III 10 The practice of deliberately putting counterfeit currency into circulation is in itself punishable in Belgium . Ignorance on the part of the counterfeiter is not specified. Article 169(1) of the Penal Code applies mainly in cases where prior consultation between counterfeiter and the issuer cannot be proved. Under it, the acquisition and putting into circulation of counterfeit or debased coins is an offence punishable by imprisonment of between one month and three years. In the case of banknotes, Article 177(1) applies and the penalty for the offence is imprisonment of between one to five years. In both instances, the offence is independent of the actual counterfeiting/debasing of the currency.
Under Danish law it is immaterial whether the forged currency is intentionally brought into circulation with or without the agreement of the counterfeiter. The same range of penalties as under A3 apply. Where the person concerned has received the money in good faith the penalty may be reduced to detention or a fine.
In Finland the counterfeiter's consent is not relevant when sentencing a person who has put the currency into circulation. What is relevant is whether he knew the currency being counterfeit at the moment of receiving it.
Also in France the counterfeiter's consent is not relevant when sentencing a person who has put the currency into circulation. What is relevant is whether he knew the currency being counterfeit at the moment of receiving it.
In these cases the penalty would be 10 years of imprisonment and a fine of 1,000,000 FFR; in cases of criminal organisations the penalties are 30 years of imprisonment and a fine of 3,000,000 FFR. (Art. 442-2 Penal Code).
In Germany the putting into circulation is punishable, and it is of no importance if the perpetrator has acted with or without the consent of the counterfeiter. §146 Abs 1 Nr 3 and § 147 Penal Code apply (see A3).
In Greece the punishable offence is for a person having received from another person counterfeit money as genuine, being unaware of the forgery, subsequently to put it into circulation despite the fact that it is counterfeit. In such a case the penalty would be imprisonment up to 6 months or a fine (Article 208(2) Penal Code).
Under etherlands ' law, he who purposely uses species, coins or banknotes which he has counterfeited or forged, as authentic and unforged specie or coins or banknotes, or of which he was aware of their falseness or counterfeit nature when he received them, for the purpose of using them or having them used, as being authentic or having them in stock, or importing them into Europe, is punishable. It is not necessary that the person circulating the counterfeit money was aware of the criminal purpose of the counterfeiter, not even that this purpose existed. Awareness of the objective fact of the forgery is enough.
Article 265 of the Portuguese Penal Code concerning passing on counterfeit currency provides:
"1. Anyone who in any way, including offer for sale, passes on or puts into circulation: (a) counterfeit or falsified currency as genuine or sound; (b) debased coinage for its full value, or (c) coinage having the same value as or a greater value than the genuine article, but manufactured without lawful authority,
5429/99 JGV/kg EN DG H III 11 shall be punishable in the case of (a) by imprisonment for up to 5 years and in the case of (b) and (c) by imprisonment for up to 1 year or a fine of up to 120 times a daily sum.
2. If the offender did not become aware that the currency was counterfeit or falsified until after receiving it, he shall be punishable by: (a) in the case of (a) in the preceding paragraph, a fine of up to 240 times a daily sum; (b) in the case of (b) and (c) in the preceding paragraph, a fine of up to 90 times a daily sum.".
The consent of the counterfeiter is therefore not relevant.
Is punishable in Sweden , whoever puts counterfeit notes or coins into circulation. The penalties are given under A3.
Finally, in the United Kingdom , the Act contains no specific reference to the consent of the counterfeiter.
B.
In Austria ,
1. the acceptance of counterfeit money from another person (except accomplices or middlemen who are covered by Art. 232 sect 2) or procurement of counterfeit money in any other way with the intention of putting it into circulation as genuine currency, or
2. the putting it into circulation as genuine currency is a punishable offence.
In these cases putting into circulation for the first time is not required. Every further passing on is sufficient.
The penalty is up to 3 years imprisonment (Art 233 sect 1 Penal Code).
It is an offence in Italy under Article 455 penal code (for paper money: see also Article 458). The penalties are the same as those mentioned under A3.
Also under Spanish law, reference is made to the connivance with the perpetrator. Article 386 §2, states that : "The possession of counterfeit currency for delivery or distribution shall be punished by a penalty which is one or two degrees lower, bearing in mind the value of such currency and the degree of connivance with the perpetrators referred to in the paragraphs above. The same penalty shall apply to anyone who acquires currency which he knows to be counterfeit for the purpose of putting it into circulation". Deliberately putting counterfeit currency into circulation without the counterfeiter's consent is not explicitly included, but should be deemed punishable as acquisition, and is that way punishable. The applicable penalty would be one or two degrees lower than the penalty stipulated in Art. 386 § 1 (See A1). Article 70 Penal code provides how to calculate these penalties: - one degree lower: 4 to 8 years imprisonment (serious offence) - two degrees lower: 2 to 4 years imprisonment (serious offence).
5429/99 JGV/kg EN DG H III 12 1.4. Possession of counterfeit currency (also acceptance, procurement, transport, import, export) with the intention of putting it into circulation
Question D1 : Are such practices punishable under your national law? Is a distinction made between the above mentioned or other practices? What kind of offence is it? How high is the range of penalties?
An overview of the answers given by the Member States follows:
Member State offence Austria for acceptance of counterfeit money: see a bove B1, C1; for procurement, see above C1. There is no distinction made between other conduct such as transport, import or export. The criminal liability of a person who is in possession of counterfeit money therefore depends on the way of acquisition, which means that the possession as such is not punishable. Belgium The acceptance or procurement of counterfeit coins or banknotes with a view to putting them into circulation are punishable under Article 169(2) (coins) and under Article 177(2) (banknotes). Both are criminal offences punishable by imprisonment of between one week to one year (coins) and six months to three years (notes). These Articles also relate to the import, export, collection and display of counterfeit coins or banknotes. The offences imply knowledge of counterfeiting prior to acquisition of the currency. Possession of counterfeit money not known to be counterfeit or falsified or discovered to be counterfeit only after receipt is not punishable as such. However, such cases may come under the provisions governing money laundering and be punishable on this basis. Transport is punishable in the same way as possession. Denmark Possession of counterfeit currency, including also receiving, procuring, transporting, importing and exporting such currency, are offences, no distinction is made between the various types of act as they are similar offences with the same range of penalties as described above under A3 and B1 Finland All these practices are punishable as counterfeiting currency. No distinction is made. As to the penalties, see A3 France Article 442-2 of the penal code makes it punishable to transport counterfeit money. The penalty is 10 years of imprisonment and a fine of 1,000,000 FFR. If a criminal organisation is involved the maximum penalty is 30 years imprisonment and a fine of 3,000,000 FFR. Transport is punished as such, without necessity to prove that it was intended to put the counterfeit into circulation. The intentional element of the conduct must still be proven, e.g., that the driver knew the illegal character of the transported goods. Germany The criminal liability of a person who is in possession of counterfeit money depends on the way of acquisition, which means that possession as such is not punishable. The possessor however can be punished because of procurement of counterfeit money, if he procured the money with the intention to bring it into circulation as genuine or to make such circulation possible.
5429/99 JGV/kg EN DG H III 13 Greece The relevant provision uses only the word "procurement", which embraces acceptance and possession, without specifically mentioning the words transport, import and export. Ireland Possession of a forged bank note without lawful authority or excuse is an offence punishable by a maximum of 14 years of imprisonment. This is an offence of simple possession, it is not necessary to show that the person intended to use the bank note, but only that he or she knew that it was a forgery. The offence applies to the purchase or receipt (in effect, procurement) of a forged bank note. The transport of forged banknotes would be covered by the offence of possession. Possession of a counterfeit coin with the intent to use it as genuine is an offence punishable by up to three years imprisonment. The import and export of counterfeit coins is an offence punishable by, in the case of imports, up to 7 years imprisonment and, in the case of exports, up to two years imprisonment. It is also unlawful under Irish customs law to import counterfeit notes or coins. Italy Italian criminal law covers these offences as follows: (a) Under article 453(3) PC a person who, while not a participant in the counterfeiting or alteration of coins, acting in concert with the counterfeiter or an intermediary, brings counterfeit or altered coins into national territory or possesses such coins may be sentenced to 3 to 12 years' imprisonment and fined from 1 to 6,000,000 ITL; (b) Under article 453(4) PC a person who acquires or receives altered coins from the counterfeiter or an intermediary for the purpose of putting those coins into circulation may be sentenced to 3 to 12 years' imprisonment and fined from 1 to 6 million ITL; (c) Under article 454 PC a person, who has committed the offences described in article 453 (3) and (4) in respect of coins whose intrinsic value has been reduced may be sentenced to 1 to 5 years imprisonment and fined from 200,000 to 1,000,000 ITL; (d) Under article 455 PC a person not covered by the articles 453 and 454 (i.e. not acting in concert with the counterfeiter or an intermediary) who acquires or possesses counterfeit or altered coins for the purposes of putting them into circulation is liable to the penalties laid down in articles 453 and 454 commuted by one third to one half. The practices described are punished as serious offences.
5429/99 JGV/kg EN DG H III 14 Luxembourg Netherlands See article 209 Penal Code under B1. Having a stock of forged money or the import of forged money with the intention of circulating it, is punishable. This penalisation has a broad reach, and covers also the receipt of forged money for the purpose of its circulation. It is not necessary that the supplier is known. Anyone who finds forged money, or alienates it from another, is equally punishable. Simple transportation of counterfeit currency is not strictly covered by artic le 209, though the accessory purpose of "the intention to circulate" it implies the penal involvement of the transporter. The transporter of counterfeit currency may therefore be punishable as a principal perpetrator in the second degree or as an accomplice to the crime described in article 209, if he has knowledge of the punishable purpose of the transport, namely the circulation of the money. As regards export of counterfeit, this conduct is not individually punishable. Any crimes concerning counterfeit are universally punishable under Dutch legislation. Those persons receiving counterfeit money abroad, with the purpose of circulating it there, can therefore be prosecuted in the Netherlands under article 209. Persons who have purposely assisted in committing this crime, even those who have only exported the counterfeit, can be prosecuted for complicity in commitment of a crime under article 209. Portugal Such practices are punishable under Article 266 of the Penal Code (acquiring counterfeit currency with the intention of putting it into circulation): "1. Anyone who acquires, holds in his keeping, imports or otherwise brings into the country any of the following, for himself or for another, with the intention of in any way, including offer for sale, passing on or putting into circulation: (a) counterfeit or falsified currency as genuine or sound; (b) debased coinage for its full value, or (c) coinage having the same value as or a greater value than the genuine article, but manufactured without lawful authority, shall be punishable in the case of (a) by imprisonment for up to 3 years or a fine and in the case of (b) and (c) by imprisonment for up to 6 months or a fine of up to 60 times a daily sum.". Spain Art. 386 §2, 1 states that "The possession of counterfeit currency for delivery or distribution shall be punished by a penalty which is one or two degrees lower, bearing in mind the value of such currency and the degree of connivance with the perpetrators referred to in the paragraphs above". For possession of counterfeit currency with intent to deliver or distribute it, the same penalty as mentioned under C1. would be applicable. Acceptance and procurement should be included in the kind of offences covered by question C1. Transport, which is not explicitly included , would appear to be equated with possession. Import and export is dealt with under question A3.
5429/99 JGV/kg EN DG H III 15 Sweden Depending on the circumstances, the practice may be punished as an attempt at or preparation for putting counterfeit currency into circulation United Kingdom It is a criminal offence to possess currency, knowing or believing it to be counterfeit, with the intention of passing it on. It is also an offence to import or export counterfeit currency.
1.5. Passing on counterfeit currency
Question E1 : Is a distinction made under your national law between putting counterfeit currency into circulation (for the first time) and merely passing on such currency (already in circulation)? If so, is merely passing on such currency punishable under your national law? What kind of offence is it? How high is the range of penalties?
Belgium, Denmark, Finland , Italy, Ireland, Greece, the etherlands, Spain, Sweden, United Kingdom do not make a distinction on this basis but both acts are punishable.
In Austria , the following distinction is made:
1) putting into circulation the first time: Art. 232 (see above A1, A3, B1)
2) merely passing on : Art 233 (See C1)
3) passing on in good faith: Art 236 (See below F1)
In France , the first putting into circulation of counterfeit currency is punished more severely (see B1) than the simple fact for someone who receives in good faith counterfeit currency to put them in circulation again, after having discovered the counterfeit. In the latter case the offence is punished by a fine of 50,000 FFR.
As for Germany , the putting into circulation of counterfeit money as genuine incurs in every case criminal liability. However, the Penal Code differentiates cases, where the perpetrator counterfeited or produced the money with the intention to bring it into circulation as genuine, or to make such circulation possible and, on the other hand, cases where these circumstances are not given (see above B1).
In Portugal , Article 265(2) makes it an offence (see C1).
1.6. Passing on and possession of counterfeit currency acquired in good faith
Question F1 : Are such practices punishable under your national law? Do special rules of evidence exist in connection with good faith? What kind of offence is it? How high is the range of penalties?
In Austria , article 236 PC penalises the passing on of counterfeit currency, having received it in good faith: The penalty is up to one year of imprisonment. Paragraph 2 of the same article deals with the situation when a person passes on counterfeit currency on behalf of another person.
5429/99 JGV/kg EN DG H III 16 Such practices are punishable in Belgium only if a suspect who has received the currency in good faith circulates it after discovering it to be counterfeit (Articles 170 and 178 of the Penal Code). The issuing of counterfeit currency acquired in good faith and not known to be counterfeit is not punishable since there is no intention to deceive. In line with the normal rules of evidence, there is always a presumption of good faith. The Public Prosecutor's Office must prove that the issuer was aware that the currency was counterfeit at the time when he issued it.
Under Danish law the possession of counterfeit currency in good faith is not in itself an offence under Section 166 criminal code. Danish legislation does not contain any special rules on evidence in connection with good faith. In case of deliberate infringing of the law the penalty is up to 12 years imprisonment with the possibility of it being reduced to detention or a fine where the money was received in good faith. In cases of an infringement involving deliberate negligence, the penalty is detention or imprisonment for up to 3 years. Where the currency has been accepted in good faith, the penalty can be reduced to a fine or may be waived in mitigating circumstances (168 Penal Code).
In Finland these practices are punishable as a use of counterfeit money, with a maximum sentence of 1 year imprisonment. No special rules of evidence are in place.
France : the fundamental principle in French procedural law is the freedom of evidence. No legal system of evidence is compulsory for the penal judge. The good faith of the accused is presumed, it is up to the accusation to prove the opposite. Nevertheless there is a set of particular rules in relation to counterfeit of currency, that provides legal consequences to the so-called "repenti actif", shown by the accused after having accomplished the criminal act. Everyone who made an attempt to commit an offence related to counterfeit of currency, whatever it may be, and who informs the competent authorities thereof, and prevents in this way the offence to take place, will benefit from legal exemption from punishment. Furthermore, he who discloses one of the following crimes or offences, will see his maximum penalty reduced by half: counterfeit, transport, putting into circulation and possession of counterfeit currency.
In Germany , putting again into circulation is a criminal offence punishable by imprisonment up to 5 years or a fine. Possession of counterfeit currency received in good faith is not an offence.
Under Greek law, it is a punishable offence to be in possession of counterfeit currency in good faith, that is to say where a person has received counterfeit currency from another person as genuine, being unaware of the forgery, and subsequently put it into circulation, notwithstanding the fact that it is counterfeit (Article 208(2) PC). The penalty is imprisonment of up to 6 months or a fine.
In Ireland , acquisition in good faith is no defence to a charge of knowingly passing on ("uttering") forged or counterfeit currency. Nor is it a defence to a charge of possession of forged banknotes (provided the person subsequently realised that the banknotes were forgeries). The offence of possession of counterfeit coins applies only where there is intent to use them, and therefore acquisition in good faith would be no defence.
5429/99 JGV/kg EN DG H III 17 In Italy this conduct is covered by article 457 penal code and punishable up to 6 months imprisonment or a fine of up to 2 million ITL. No special rules of evidence are in place. Under Article 694 of the Italian Criminal Code a person who has received counterfeit currency with a value of more than 20 ITL and who fails to surrender it to the authorities within 3 days of discovering that it is counterfeit is liable to an administrative fine of up to 400,000 ITL.
In The etherlands Article 213 of the Penal Code, makes the following conduct a criminal offence: he who purposely circulates counterfeit or forged or damaged specie or counterfeit or forged coins or banknotes, shall be punishable with a prison sentence of at most 3 months and a fine of the second category. Awareness of the counterfeit is a requirement. There are no special rules on proof. Possession in good faith is not punishable in the Netherlands. Anyone receiving forged money must hand it over to the Dutch Central Bank.
Under Article 13 of the Portuguese Penal Code, "only an act committed with malice or, in cases specified by law, through negligence shall constitute a punishable offence". Accordingly, as the criminal law provisions set out above defining the offence in question (specifically Article 265 of the Penal Code) do not make it committable through negligence, a holder in good faith, ipso facto free of malice, the requisite intentional aspect, does not fulfil the general requirements in order for the crime to be found to have been committed. Proof of the holder's good faith is provided in the course of criminal proceedings, which will be closed once it is established that no crime has been committed.
The Spanish Penal Code provides under art. 386 : Anyone who receives counterfeit currency in good faith, and then puts it into circulation or distributes it after discovering that it is counterfeit shall be liable to deprivation of liberty for 9 to 15 weekends , and a fine of 6 to 24 months (the system of day-fine allows the judge to adapt the fine to the economic circumstances of the author). The passing on and possession of the counterfeit currency is considered an offence if the value of the counterfeit money is higher than 50,000 pesetas. Otherwise, it is considered to be a misdemeanour or minor offence, which is regulated in article 629 P.C.. According to jurisprudence, good faith is not presumed, so it is necessary to prove that counterfeit currency has been received in good faith.
In Sweden : the passing on of currency, knowing that it is counterfeit, is a criminal offence, and it does not matter if the counterfeit was received in good faith. There are no special rules of evidence: the prosecutor has to prove the perpetrator's intention to pass counterfeit currency on.
In the United Kingdom there is no specific defence of good faith in the legislation. Section 17(4) sets out a defence "having lawful authority" or a "lawful excuse". The prosecution must prove guilt: e.i. knowledge or belief that the notes in question were counterfeit.
1.7. Manufacture and possession (also acceptance, procurement, transport, import, export) of tools and materials intended for the counterfeiting of currency (see Article 3(5) of the Geneva Convention)
Question G1 : Are such practices punishable under your national law? What kind of offence is it? How high is the range of penalties?
5429/99 JGV/kg EN DG H III 18 These practices are punishable in all Member States, either as special offences or under the general provisions against counterfeiting, or as attempts or participation (collaboration). Some legislations do not cover export and transport of these materials (e.g. Finland). The legal situation in the different Member States is as follows: Austria: Art. 239 PC criminalises acts preparatory to the commission of the crime of counterfeiting of money. According to this provision a person who - with the intention to enable counterfeiting of currency carried out by himself or by another person - manufactures, obtains for himself or for another person, offers or leaves to a person means or tools obviously intended for the mentioned purpose commits an offence punishable by up to 2 years imprisonment.
Belgium: Persons counterfeiting or falsifying government stamps, hallmarks, dies, moulds, plates or any other items used in the production of either coins or banknotes are liable under Article 180 of the Penal Code to imprisonment of between five to ten years.
Denmark: The general rules on attempted offences and collaboration (Chapter 4 Penal Code) are applied. Sections 21 (attempted offences) and 23 (collaboration) of the Penal Code extend the scope of most of the provisions on penalties in the Penal Code, so that these provisions apply to some cases of participation and attempted offences. On this basis attempted offences and participation in committing offences against the provisions of the penal code are in principle penalised in the same way as fully-fledged offences. Production and possession (which also includes receiving, procuring, transporting, importing and exporting of certain equipment or materials for counterfeiting) may according to the circumstances be punishable as attempted offences or collaboration in committing offences against the provisions on the counterfeiting of currency.
Finland: The practices are punishable, with the exception of exporting and transporting, as preparation of counterfeiting. The penalty goes from fines to 2 years of imprisonment. In Finnish law the term "device or supplies" is used, which covers all technology which can be used for committing these crimes. Also the word "materials" is appropriate for the purposes of criminalisation of tangible currency.
France: Possession and use without authorisation of materials and instruments especially meant to produce notes and coins are criminal offences. The criminal sanctions are 1 year imprisonment and a fine of 100,000 FFR.
Germany: The manufacture and possession of materials and tools is under German law criminalised as follows: For the preparation of counterfeit money can be punished, anyone who for these purposes, manufactures, provides for himself or a third person, keeps, or delivers disks, forms, printing materials.., or paper that resembles the one used for printing currency. The sanction is imprisonment (up to 5 years) or a fine. See also article 127 of the Administrative Offence Act (Gesetz über Ordnungswidrigkeiten), where administrative fines are foreseen without regard to the purposes for which the perpetrator acts.
5429/99 JGV/kg EN DG H III 19 Greece: These practices are misdemeanours under Article 211 PC, with a penalty of up to 3 years imprisonment and a fine.
Ireland: It is an offence, with a maximum penalty of 7 years imprisonment, to make or knowingly to possess any implements or material for the forgery of banknotes . It is an offence, with a maximum penalty of life imprisonment, knowingly to make, repair or possess without lawful authority tools for the manufacture of coins .
Italy: The act of counterfeiting watermarked paper used in the production of banknotes, and the acquisition, possession and conveyance of such counterfeit paper are offences covered by article 460 PC and punishable by 2 to 6 years of imprisonment and a fine (600,000 to 2,000,000 ITL);
The manufacture, acquisition, possession and conveyance of watermarks or equipment intended solely for the production of counterfeit coins are covered by article 461 PC and punishable by 1 to 5 years imprisonment and a fine (200,000 to 1,000,000 ITL).
The etherlands: Article 214 PC reads: he who manufactures substances or objects or has at his disposal, of which he is aware that they are intended for counterfeiting, forgery or devaluation of specie of counterfeiting or forgery of coins or banknotes, shall be punishable with a prison sentence of at most 4 years and a fine of the fourth category. "At his disposal" does not need to be exclusively defined as having the substance or object immediately available at all times. However, there must be some degree of control over the goods. This is not necessarily the case in import, transport or export. It is the case, however, if the person who thus behaves, is aware that the goods are intended for the counterfeit or forgery of money and this counterfeit or forgery does actually take place. In those cases, the transporter can be prosecuted as an accessory to committing the crime of article 208. Portugal: Such practices are punishable under Portuguese criminal law, in accordance with the following provisions: Article 269 of the Penal Code (counterfeiting of stamps, dies, seals or signets):
"1. Anyone who counterfeits or falsifies stamps, dies, seals or signets of any authority or public department with the intention of using them as genuine or sound shall be punishable by imprisonment for up to 5 years.
2. Anyone who with the same intention acquires, holds in his keeping, imports or otherwise brings into the country, for himself or for another, items referred to in the preceding paragraph which are counterfeit or have been falsified shall be punishable by imprisonment for up to 3 years or a fine.
3. Anyone who uses items referred to in paragraph 1 without due authority with the intention of harming another or the State shall be punishable by imprisonment for up to 2 years or a fine of up to 240 times a daily sum.".
5429/99 JGV/kg EN DG H III 20 Article 270 of the Penal Code (false weights and measures):
"1. Anyone who with the intention of harming another or the State: (a) affixes a false punch mark to weights, measures, weighing machines or other measuring instruments, or has falsified the punch mark affixed; (b) alters in any way weights, measures, weighing machines or other measuring instruments requiring a punch mark by law, or (c) uses false or falsified weights, measures, weighing machines or other measuring instruments, shall be punishable by imprisonment for up to 2 years or a fine of up to 240 times a daily sum.
2. Attempted offences shall be punishable."
Where specifically related to counterfeiting of currency, the practices described above are also punishable as preparatory acts under Article 271 of the Penal Code:
"1. Anyone who prepares for commission of the acts referred to in Articles 262, 263, 268(1), 269(1) or 270 by manufacturing, importing, acquiring for himself or for another, supplying, offering for sale or having in his possession:
(a) moulds, dies, printing plates, coining presses, punches, negatives, photographs or other tools by their nature usable to commit crimes, or (b) paper identical to or confusable with the type specially produced to prevent imitation or used in producing currency, credit instruments or stamped paper, shall be punishable by imprisonment for up to 1 year or a fine of up to 120 times a daily sum.
2. The preceding paragraph shall apply mutatis mutandis to falsification of the instruments listed in Article 267.
3. No punishment under the preceding paragraphs shall be incurred by anyone who of his own volition: (a) desists from committing the act prepared for and gives warning of the danger, caused by him, of another continuing to prepare for the act or committing it, or seriously endeavours to do so or prevents the act from being committed, and (b) destroys or disables the facilities or items referred to in the preceding paragraphs, or reports or surrenders them to the public authorities.".
Spain: Article 400 PC lays down: the manufacture or possession of tools, materials, instruments, substances, machinery, computer programmes or apparatus specially intended for the commission of the offences prescribed in the chapters above will be punished with the penalty indicated in each case for the perpetrators. This article puts the manufacture or possession of this kind of instrument on the same footing as counterfeiting proper, as regulated by Article 386. (8 to 12 years imprisonment and a fine of 1 to 10 times the face value of the currency)
Sweden: The practices referred to should to a large extent be judged as preparation for counterfeiting currency and therefore punishable. The punishment for preparation shall be less than the highest limit applicable to the completed crime (see A3).
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United Kingdom: It is a criminal offence to manufacture or possess without lawful authority any thing which is intended to be used for making counterfeit notes.
1.8. Other practices
Question H1 : Does your national law have any other criminal offences in connection with the counterfeiting of currency?
Austria: Art 237 PC deals with "counterfeiting of especially protected securities", and criminalises all conduct according to the above mentioned articles 232, 233 or 236 StGB which is carried out in regard of (bank)notes not having the quality of means of payment, because they are not yet issued or are not valid anymore.
Belgium: - All the provisions on the counterfeiting of banknotes described above also apply to securities, debentures, shares and dividend coupons.
- Under the law of 11 June 1889 on printed matter and forms having the appearance of banknotes or other forms of paper security, the production, sale, peddling and distribution of all printed matter or forms, obtained by whatever method, which by their external form resemble banknotes or securities in general are offences punishable by imprisonment of between one week to three months and a fine of between 26 and 1,000 francs or by one of these penalties alone. The likeness must be potentially misleading. (The fines are updated regularly and have to be multiplied actually by 200).
- Under Articles 497 and 497a of the Penal Code persons giving coinage of legal tender the appearance of a higher value, and persons issuing, importing, possessing or receiving such coins, are guilty of fraud.
Denmark: As already mentioned there are special rules on the monopoly of the National Bank to issue currency notes, while as regards coins the National Bank is responsible for administering the institution of the Royal Mint, which mints and issues coins.
Section 170 Penal Code lays down that anyone unlawfully producing, importing or issuing bonds which appear to be intended for use in a restricted or wider circle as means of payment between persons, or which may be expected to be so used, shall be punishable with a fine or up to 3 months detention.
Finland: A special crime is called "Circulation of imitation money". Imitation money resembles genuine money, but it has not been made to appear quite similar as genuine money. A typical example of imitation money could be a picture of a bank note on an advertisement.
France: It is an offence (1 year imprisonment + 100,000 FFR) to produce, sell, distribute all objects, prints or forms that present similarities with monetary signs, and that can facilitate the acceptance of these objects, prints or forms as the genuine imitated values.
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Germany: Several criminal or administrative offences are mentioned: a) §35 Law German federal Bank: unauthorised issue and use of currency (imprisonment up to 5 years or a fine) b) §11 Law on the Mint of coins: counterfeiting, forgery, possession, putting into circulation of coins that have been taken out of circulation or that are not valid anymore: an administrative fine up to 10,000 DEM. c) §5 Decree on unlawful manufacture and distribution of medals and marks (concerning forgery and putting into circulation of money-like medals or medals with indication of any currency): administrative fine up to 10,000 DEM. d) § 128 Law on Administrative Offences (Ordnungswidrigkeiten): the manufacture and issuing of money-like prints: administrative fines up to 20,000 DEM. e) § 138 STGB - on Information of Authorities about ongoing or planned counterfeit (imprisonment up to 5 years or a fine) f) Fraud (§263 StGB), Receiving of stolen goods (§259 StGB) and Collusion (§257 StGB)can also be related to counterfeit of currency.
Greece: Special criminal offences are: a) the depreciation of coins (209/210 PC) b) counterfeiting or alteration of banknotes and other securities classified as such (214 PC) c) the unlawful issuing of bearer notes which include a promise of payment of a certain amount (215 PC).
Ireland: There are a number of currency- related offences, but they are due to be replaced soon by the comprehensive new law currently under preparation.
Italy , The etherlands and Portugal: Do not mention any specific legislation.
Spain: Article 386,2 PC makes anyone who imports counterfeit currency into Spain liable to a penalty of 8 to 12 years imprisonment, i.e. the same penalty as for the counterfeiter. If the same person first counterfeits and then imports into Spain, the second act is a subsequent act which does not attract a penalty in its own right.
Sweden: Failure to disclose the counterfeiting of currency is punishable.
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United Kingdom: It is a criminal offence under section 19 to make, sell or distribute imitation coins intended for use in connection with promotional or sales activities and to produce notes on whatever material and whatever scale. The penalties for these offences are a maximum fine of GBP 5,000 in the magistrates' court or a fine in the Crown Court.
It is also an offence to possess counterfeit currency even when there is no intention of passing it on, or passing it off as genuine.
Question H3 : Does your national law possess any special features regarding the criminal nature of attempted counterfeiting or participation in the counterfeiting of currency?
The general rules on attempt and participation seem to apply in all Member States.
Austria especially mentions that as there is no possibility of withdrawal from attempted counterfeiting according to the general provision of abandoning an attempt (Art 16 StGB) in every case the Austrian criminal code provides a special legal exemption from punishment entitled "manifested repentance" (Art 240 StGB). Under this provision the offender ceases to be punishable for criminal acts referred to in article 232-234 and 237-239 StGB if he voluntary:
1) resigns to complete the criminal act
2) destroys the counterfeit money or the tools intended for counterfeiting or hands them over to the prosecution authorities and
3) by informing the prosecution authority or in any other way eliminates the danger of counterfeit money being put into circulation because of his or his participant's conduct, before this (the putting into circulation) has been attempted. Under certain conditions it may be sufficient that the offender at least tries hard to eliminate the danger. The offence of "passing counterfeit money" (Art 236 StGB) is not covered by Art 240 StGB.
In Belgium , Article 192 of the Penal Code grants a penalty exemption in the case of persons guilty of any of the offences referred to in Articles 160 to 168, 169(2), 171 to 176, 177(2) (...) who inform the authorities of all such offences, and the names of their perpetrators, prior to any issuing of counterfeit or debased coins or counterfeit or falsified notes and prior to any prosecution proceedings.
In Germany , if the perpetrator, under art 146 Abs 1 PC, acts as a member of a criminal organisation involved in counterfeit, the minimal sanction is imprisonment of 2 years.
Under Irish common law it is an offence to attempt or commit any offence. In addition, a person who aids, abets, counsels procures the commission of an indictable offence is liable to be punished as the principal offender.
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In Portugal , the general rules, which are applicable to counterfeiting of currency, stipulate that attempted offences (Article 23 of the Penal Code) are punishable only if the relevant crime where actually committed carries a sentence of over 3 years' imprisonment, in which case they will be punishable by the sentence applicable to the crime as committed, with a special reduction. Impossible attempts, i.e. attempts made where the means used are manifestly unsuitable or the object required for commission of the crime is lacking, are not punishable.
Preparatory acts, on the contrary, are not punishable unless otherwise stipulated, i.e. will be so only in the specific case, outlined above, made an offence by Article 271 of the Penal Code (see G.1).
In the United Kingdom , the Criminal Act 1981 made it an offence to do an act 'which is more than merely preparatory to the commission of an offence". The penalties for such attempts are the same as for the substantive offence. The Criminal Law Act 1977 defined conspiracy as an agreement by two or more persons to pursue a course of conduct "which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions". The penalties for conspiracy are the same as for the substantive offence. The Criminal Justice (Terrorism and Conspiracy) Act 1998 makes it an offence to conspire within the UK to commit an offence overseas, provided that the offence is also an offence within the overseas jurisdiction.
1.9. on the necessity to have a minimum definition of conduct which must be punishable in all Member States
Several ideas and suggestions were made by Member States,and even if some comments were made several times, it seems difficult to indicate already some generally shared opinions. It seems therefore better to list the most mentioned suggestions concerning the questions A2, B2, C2, D2, E2, F2, G2, H2:
1. Some Member States propose to await the outcome of the discussions in the working party before answering these questions .
2. Other Member States do not immediately see an obvious need for a minimum definition of the different conducts described in the questionnaire, the essential issue being that the law of the Member States criminalises such conduct that are intended to put counterfeit currency into circulation, and conduct that are carried out in order to prepare for the production of counterfeit currency.
3. It could be studied whether the definitions used in the 1929 Geneva Convention are still adequate and whether it is really necessary to define punishable conducts again within the context of the European Union. In any case, any new definition would have to be based on that contained in the Geneva Convention: "any fraudulent making or altering of currency, whatever means are employed".
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4. Some Member States consider that a uniform penalty is not needed, and it is sufficient to see if the range of sanctions is not dramatically lower in some States. One Member State points out that harmonised minimum penalties in all Member States might be more appropriate than uniform penalties. For several Member States, an harmonisation of the level of sanctioning seems to be desirable, and this could be at the same level as that for an extraditable offence.
5. One Member State points out that a written down definition could prove to be too restrictive in the end, and that it is preferable to leave it to the judges to define into detail what counterfeit of currency is, the main issue being that the law in all Member States covers counterfeiting of the Euro.
6. Some Member States are favourable to a common definition of the concepts of "counterfeit currency" and "counterfeiting of currency" and a certain harmonisation of national criminal legislation can always contribute to a more efficient international mutual legal assistance in criminal matters.
A common definition of counterfeiting of currency would appear to be a prerequisite for drawing up a legal instrument to combat counterfeiting of the Euro. Italy proposes the following as a possible definition, subject to further or better proposals:
" For the purposes of this legal instrument: - "genuine currency" means coins and banknotes that are recognised by the law as means of payment and manufactured by the bodies specifically authorised for that purpose; - "counterfeiting of currency" means a) the unauthorised manufacture of one or more coins or banknotes to resemble genuine currency, where the fact that such coins or banknotes are not genuine is not immediately apparent; b) unauthorised changes made to one or more coins or banknotes in order to confer on them a higher denomination, where the fact that such coins or banknotes are not genuine is not immediately apparent; - "counterfeit currency" means coins and banknotes produced through the counterfeiting of currency" .
7. Some Member States consider that a uniform provision on the offence to acquire counterfeit money where the acquirer knows it to be counterfeit is necessary, both because this will make mutual legal assistance and extradition easier and because in practice it is already a widespread offence.
8. The consent of the counterfeiter should be of less importance.
9. Most Member States do not favour setting threshold for offences; all offences of counterfeiting should be punishable.
10. Possession of and passing on counterfeit currency are among crimes that should be punishable in all Member States. It can be discussed however, should the possessor have an intention to put the money into circulation. Already possession without acceptable reason might be worth of punishment.
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11. The introduction of a distinction between passing on counterfeit for the first time and other cases at international level would appear to serve no useful purpose for several Member States.
12. Most Member States agree that the conduct of passing counterfeit currency, knowing its nature, should be punishable in all Member States. No general need is felt to introduce uniform penalties for this conduct, and, for most Member States, an adequate sanction, in line with the other sanctions provided by the respective criminal justice system should be sufficient.
13. A Member State suggests that, for reasons of criminal policy, the notion of "repenti actif" would be introduced in all national legislations. In its legal system the criminal liability of legal persons can be invoked.
14. Several Member States do not see a need to criminalise possession of counterfeit received in good faith.
15. Concerning the manufacture of tools etc., there seems to be general agreement that all these conducts should be punishable in all Member States. A uniform approach by Member States is recommended, but only a few Member States feel a need for uniform penalties. Some Member States suggest that it should be examined to what extent the terms "tools" and "materials", are still appropriate in view of modern technical developments (computers, colour photocopiers, banknote security features). One Member State proposes to add the word 'means', i.e. equipment of any sort which may serve in the counterfeiting of currency.
16. Most Member States do not see a need to criminalise any other practices by uniform penalties, or do not have proposals to make on this point. One Member State proposes to make it a criminal offence in all Member States to produce, sell, distribute all objects, prints or forms that present similarities with monetary signs, and that can facilitate the acceptance of these objects, prints or forms as the genuine imitated values. One Member State proposes to make it a criminal offence in all Member States to produce, sell, distribute all objects, prints or forms that present similarities with monetary signs, and that can facilitate the acceptance of these objects, prints or forms as the genuine imitated values.
2. PE ALTIES
Question J1 : Do you have statistics on the frequency of convictions for the criminal offences mentioned under 2.2 and the level of penalties imposed?
Austria has statistics on the year 1995. 2.382 cases were detected (also covering cases in which only one counterfeit banknote was detected), 350 suspects were detected. Only 43 persons were sentenced, of which 9 to a fine (of which 1 on probation). 31 persons were condemned to imprisonment, of whom 14 on probation and 11 partly on probation.
In Denmark some 639 cases were detected in 1997. 125 were considered as solved.
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In 1994, 25 persons were sentenced in Finland a) counterfeiting: 6; b) aggravated counterfeiting: 4; c) petty counterfeiting: 3; d) possession: 11; e) circulation of imitation money: 1.
Fines were given for c, d and e. The median time of imprisonment was for a: 5,3 months and for b 34,7 months.
Italy has statistics on the convictions for currency counterfeiting offences in 1996 (575 cases) and 1997 (535 cases-not final).
type of offence 1996 1997 Counterfeiting coins, putting into circulation and introducing counterfeit coin in 139 112 collusion with the counterfeiter Putting counterfeit coin into circulation and introducing counterfeit coin into the 316 301 State without collusion with the counterfeiter Putting counterfeit coin received in good faith into circulation 91 93 Alteration of coins - - Counterfeiting, alteration, etc. of public paper 21 29 Counterfeiting watermark paper - 1 Manufacture and possession of watermarks or other equipment for use in 9 1 counterfeiting coins
In Spain an increasing number of cases was detected these last years (572/1991; 230/1992; 371/1993; 934/1994; 743/1995; 853/1996; 1802/1997), but only very few persons were sentenced (1/1992; 3/1993; 7/1994; 4/1995).
(1) The United Kingdom provided statistics covering 1995 to 1997 .
1) Number of offenders prosecuted and convicted at magistrates' courts
year prosecution comm. trial guilty fine community custody other sent measure 1995 22 16 3 3
1996 14 7 4 2 1 1 1997 23 13 6 5 1
(1) The statistics shown for the UK relate to the more general offence of "counterfeiting currency", not to the specific offence referred to in question 2.2.
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2) Number of offenders tried and convicted at the Crown Court
year tried guilty fined community custody other sent measure 1995 45 40 2 4 31 3 1996 8 7 6 1 1997 11 8 2 4 2
3) Average fine (in GBP) and average sentence length (in months)
year Magistrates' courts The Crown Court All Courts average fine average average fine average average fine average sentence sentence sentence length length length 1995 533 - 375 28,0 470 28,0 1996 50 - - 17,0 50 17,0 1997 - 6,0 - 35,3 - 29,4
France mentions that statistics are available (casier judiciaire national). Greece points out that such statistics have not been regularly kept and that it is consequently not easy to produce them.
Statistics were not available in Belgium, Germany , Ireland, The etherlands , Portugal and Sweden .
Question J2 : Have you any reason to suppose that differences in levels of penalty in the Member States lead to any shortcomings in the prosecution and punishment of the counterfeiting of currency?
Most Member States have no such reasons, or do not have information available on this question . One Member State emphasises that differences do not only result from different legal provisions, but also the application of sanctions by the courts is important.
One Member State underscores that the differences in penalties can be very substantial. The Luxembourg law e.g. would treat foreign counterfeit currency, differently than national currency. Furthermore, the counterfeit, sanctioned by life imprisonment in Ireland, is only punished with an imprisonment of 3 to 12 years in Italy. These important differences lead probably to a different penal policy in different states. They could have important consequences in cases of extradition.
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3. OFFE CE MEETI G THE CRITERIA FOR EXISTE CE OF A CRIMI AL ORGA ISATIO
On 28 May 1998 the Council reached agreement (subject to a parliamentary reservation) on the Joint (2) Action on making it a criminal offence to participate in a criminal organisation. Article 1 of this Joint Action defines what is meant by "criminal organisation"; reference is made inter alia to Article 2 of the Europol Convention and to the Annex thereto. That Annex also mentions the forgery of money.
Question K1 : Are the criminal offences referred to above in questions A3, B1, C1, D1, E1 and G1 crimes under your national law within the meaning of Article 1 of the above mentioned Joint Action?
In most Member States all the conducts described in the questionnaire fall within the meaning of Article 1 of the Joint Action. However, some exceptions are made by Belgium, Denmark, Finland, France, Ireland and Sweden.
In Austria , Article 278a PC provides: "Whoever forms a group or simply is a member of a group designed to exist for a longer period of time, consisting of a greater number of persons and having a corporate structure like business enterprises, commits the crime of "criminal organisation", if,
- this group is directed, albeit not exclusively, to the continuous and planned commission of, e.g., serious crimes in the field of trafficking in counterfeit money, and
- this group aims (through committing these crimes) at amassing substantial profits (approximately ATS 500,000) or at gaining major political or economic influence, and
- this groups strives to corrupt or to intimidate others or to shield from criminal prosecution".
This crime is punishable with imprisonment from 6 months to 5 years.
Under Art. 278 PC, individuals who form a gang of at least three persons for the purpose of continuously committing offences of the same kind as enumerated in the catalogue of this Article will be punished with up to three years imprisonment. This catalogue contains punishable acts jeopardising secure transactions of money, securities and postage or revenue stamps (Art. 232-239 PC).
In Belgium the conduct referred to in question D1 does not fall under this offence. Belgium points out, however, that the Joint Action combines the Europol list with a penalty threshold. Only those crimes which appear in the Europol list and meet the condition of the four-year penalty threshold are considered offences which may be committed in the context of a criminal organisation.
Under Section 23 of the Danish Penal Code, the provision of sanctions for an offence covers all those who by incitement, advice or deed have collaborated in the act. Thus where a person enters into an agreement with one or more others to commit a criminal act this can be penalised. If the offence is not committed, the person may be prosecuted for collaboration (participation) in the attempted offence.
(2) The Joint Action was adopted by the Council on 21 December 1998.
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In Finland , the criminal offences referred to in questions A3, B1 and C1 are crimes within the meaning of the Joint Action. The penalty for possession of counterfeit money (D1) falls under the limit of 4 years set out in Article 1 of the Joint Action. The criminal offences mentioned under E1 and G1 can be punished either as counterfeiting or use of counterfeit currency. The former is a crime which falls under the scope of the Joint Action, the latter not.
Under French law, the offences mentioned under questions A3, B1, C1 and D1 fall under the scope of the Joint Action. The criminal offences mentioned under questions E1 and G1 are minor offences for which the penalty is below the level agreed in the Joint Action. Nevertheless, some acts can constitute the offence of criminal association under article 450 PC, for which the maximum penalty is 10 years' imprisonment and a fine of 1,000,000 FFR.
In Germany , § 129 PC criminalises the constitution and the membership of a criminal association, that is meant to commit crimes. Criminal conducts referred to under questions A1/A3/B1/C1/D1/E1/G1 can be crimes that fall under this scope. It should be mentioned here that § 129 PC does not have the limit of a minimum penalty of 4 years imprisonment, as set out in Art. 1 of the Joint Action.
Under Article 187 of the Greek Penal Code, the currency offences constitute crimes within the meaning of article 1 of the Joint Action, if the following conditions are fulfilled: (a) structured association (b) significant duration (c) activity by at least two people with the intention of committing criminal acts.
In Ireland an exception is made for the offence of "uttering" counterfeit coins which is punishable by up to 3 years imprisonment.
In Italy , Article 416 PC provides in general that the association between three or more persons for the purpose of committing a crime of any kind is an indictable offence; currency counterfeiting offences are therefore included.
In the etherlands , Spain and in the United Kingdom , the conduct covered by questions A3/B1/C1/D1/E1/G1 fall under the scope of article 1 of the Joint Action.
In Portugal , Article 299 of the Penal Code makes the commission by a criminal organisation of any of the crimes defined in criminal legislation generally a punishable offence:
"1. Anyone who promotes or establishes a group, organisation or association purposing or serving to commit crimes shall be punishable by imprisonment for from 1 to 5 years.
2. The same punishment shall be incurred by anyone who belongs to or assists such groups, organisations or associations, in particular by supplying arms, ammunition, instrumentalities of crime, lookouts or premises for meetings, or any help in recruiting new members.
3. Anyone heading or leading groups, organisations or associations referred to in the preceding paragraphs shall be punishable by imprisonment for from 2 to 8 years.
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4. The penalties specified may be specially reduced or no punishment imposed if the offender prevents or seriously endeavours to prevent the continuation of groups, organisations or associations, or reports them to the authorities so that the latter can prevent the commission of crimes.".
For Sweden , all the acts listed in the questions come under Article 1 of the Joint Action. However, when an act coming under D1 and G1 is judged to be a preparatory act, a serious crime must be involved.
Question K2 : Should the criminal offences referred to above in questions A3, B1, C1, D1, E1 and G1 (or only some of them) be uniformly regarded as crimes within the meaning of Article 1 of the above mentioned Joint Action in all the Member States?
Several ideas and suggestions were made by Member States,and even if some comments were made several times, it seems difficult to indicate already some generally shared opinions. It seems therefore better to list the most mentioned suggestions concerning this question:
1. Some Member States consider there is no need to go further than what has already been agreed in the Joint Action.
2. One Member State indicates that at least the conduct should be covered referred to in A3, B1, C1 and D1.
3. Several Member States indicate that at least the conduct referred to under questions A3/B1/C1/D1/E1/G1 should be punished as crimes within the meaning of the Joint Action. One Member State does not see any objection to making all such offences punishable by at least four years imprisonment.
4. Other Member States prefer to await future discussions in the Working Party.
4. PREDICATE OFFE CE OF MO EY LAU DERI G
In accordance with Article 6 of the Convention of the Council of Europe on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, the contracting States are required to establish money laundering as an offence relating to proceeds from all criminal acts; by declaration the contracting States may limit the range of such acts (predicate offences).
Question L1 : Are the offences referred to in questions A3, B1, C1 and E1 predicate offences under your national law within the meaning of this provision?
There is no limit to the range of predicate offences in Belgium, Finland , France , Ireland, Italy , the etherlands (except if the counterfeiter launders himself the money).
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In Austria, money laundering according to Art. 165 PC requires crimes or certain offences (e.g. active and passive corruption) as predicate offences. The "crimes" referred to in questions A3, B1, C1, and E1 are predicate offences for money laundering under Austrian criminal law, whereas the "offences" referred to under questions C1 and E1 are not. Under Art. 278a sect. 2 PC, the criminal law provides a second specific type of money laundering offence: under this provision the assets involved are not required to derive from crimes or certain offences but have to be held by a criminal organisation, a fact that has to be known by the perpetrator who is laundering parts of the assets in the interest or on behalf of the criminal organisation.
Section 284 of the Danish Penal Code deals with the offence of receiving of stolen goods. These provisions are not applicable on money laundering as far as the conducts referred to in questions A3/B1/C1 and E1 are concerned. A possible extension of the range of predicate offences referred to in Section 284 of the penal code is under consideration in Denmark.
In Germany , the conducts referred to under A3, B1, C1, D1 and E1 are crimes, and therefore they are covered by the provisions of § 261 PC concerning money laundering. The putting into circulation of counterfeit currency in cases not covered by § 146, 1 Nr 3 PC (§ 147 PC) and the preparatory acts to counterfeit (§ 149 PC) are misdemeanours, and such conduct is only covered by § 261 PC is as far as the acts are committed by a member of a criminal association.
Counterfeiting is not a predicate offence under Greek law.
In Portugal , it is not a predicate offence.
In Spain , article 301 PC specifically provides that the laundered goods must have their origin in a serious offence. Accordingly, the offences to which reference is made in questions A3/B1/C1 and E1 would be predicate offences for these purposes.
Sweden has made a declaration to the Money Laundering Convention of the Council of Europe, stating that it will only apply where the laundered property derives from a criminal acquisition. The government has tabled a bill which means that the extent to which money laundering can be punished is widened. Sweden will thus satisfy the requirements of the convention and the declaration can be withdrawn. Sweden considers that the crime of counterfeiting is completed once the counterfeiting act itself is perpetrated and does not therefore depend on the perpetrator making a criminal acquisition or any other economic gain. The counterfeiting as such does not produce any gain and should not therefore be the predicate offence of money laundering. If, on the other hand, the counterfeiter receives compensation for either his counterfeiting work or his counterfeit currency, what he obtains is considered to derive from a criminal acquisition and may therefore be the subject of proceedings for money laundering. All acts which mean that a person intentionally puts counterfeit currency into circulation, with or without the counterfeiter's consent, are punishable. It is not necessary for a person to receive value for the counterfeit currency, which means that the putting into circulation of counterfeit currency as such ought not to constitute the predicate offence of money laundering. Likewise with counterfeiting, it is not necessary for the perpetrator to have made a criminal acquisition or any other economic gain. If, on the other hand, the perpetrator receives payment for putting currency into circulation or if he deceives someone into giving compensation in exchange for counterfeit currency, what he obtains is derived from a criminal acquisition and can be subject of criminal proceedings for money laundering.
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In the United Kingdom , all these offences are predicate offences for money laundering (Sections 29-33 Criminal Justice Act 1993).
Question L2 : Should the offences referred to above in questions A3, B1, C1 and E1 be uniformly regarded as predicate offences within the meaning of this provision in all the Member States?
Most Member States consider that all these offences should be uniformly regarded as predicate offences. Some Member States propose that, to ensure judicial co-operation, uniform provisions should be introduced. See, in this respect, the Joint Action adopted by the Council on 3 December 1998, relating to money laundering.
5. CO FISCATIO
In accordance with Article 2 of the above-mentioned Council of Europe Convention, the contracting States are required to facilitate confiscation of instrumentalities and proceeds or property the value of which corresponds to such proceeds. Article 11 of the Geneva Convention lays down an obligation to seize and confiscate counterfeit currency, tools, etc.; provision is made for forwarding such articles to a national central office (Article 12 of the Geneva Convention, see also 8.2 below).
Question M1 : Do the provisions under your national law meet these requirements? All Member States consider they fulfil the requirements. Some Member States have given a more detailed description on how their legal system operates.
The Austrian Penal Code provides three types of confiscation provisions:
1) Confiscation (art. 26 PC): Instrumenta et producta sceleris are to be confiscated, if this seems to be necessary to prevent future commission of criminal acts. Also instruments which only were intended to be used for the commission of a crime/offence are covered by this provision. Confiscation requires the proof of at least the attempt of a criminal act. Usually confiscation is to be ordered simultaneously with the judgement of conviction, but there also exists the possibility of independent (objective) proceedings.
2) Confiscation of profits (art. 20 & 20a PC): it is the actus contrarus aimed at counteracting unlawful enrichment. It is to be applied to all punishable acts through which, or for which, the perpetrator has received proceeds. Art. 20 refers to the unlawful commission of a punishable act; independent from culpability, thus not requiring a conviction for this offence. Proceeds may be confiscated also from legal entities. Usually confiscation is to be ordered simultaneously with the judgement of conviction, but there also exists the possibility of independent (objective) proceedings. In principle, confiscation may be refrained from if the profits do not exceed an amount of ATS 300,000; however, this exception will generally not be applied in counterfeiting cases. If crimes have been committed continuously or repeatedly, or if the perpetrator was a member in a criminal organisation, assets may be confiscated the legal acquisition of which cannot be made credible (reversal of the burden of certification of origin).
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3) Forfeiture (art. 20b, 20c PC): is applied with regard to assets at the disposal of a criminal organisation and with regard to assets secured in Austria originating from an offence committed abroad not being subject to Austrian jurisdiction (because there exists no relationship to Austria) but being punishable under the law of the State where it was committed. Usually also forfeiture is to be ordered simultaneously with the judgement of conviction, but there also exists the possibility of independent (objective) proceedings.
Belgium points out that even before the Geneva Convention negotiations, a Belgian Central Bureau for the Suppression of Counterfeit Currency (Belgisch Centraal Bureau ter Beteugeling van de Valsmunterij) was set up at the headquarters of the Criminal Investigation Department in Brussels (Commissariaat-generaal van de gerechtelijke politie) to gather information of relevance to the investigation, prevention and suppression of such offences, maintain contacts with the Secretariat-General of Interpol in Paris and accept falsified or counterfeit Belgian or foreign banknotes with a view to handing them over to either the National Bank or the foreign State in question. In 1994, the Bureau was integrated into the General Police Support Service (Operational Assistance Division), while retaining the same terms of reference.
In Denmark , Sections 75 to 77a of the Penal Code contains general provisions on confiscation of the proceeds of a criminal offence.
In Section 75 (1) it is laid down that the proceeds of a criminal offence or a sum corresponding to the amount thereof may be confiscated either partially or in full. If the necessary basis for establishing the amount of the sum is absent, a sum may be confiscated which is deemed to correspond to the proceeds realised. Section 75(2) further lays down that where it is felt to be necessary to prevent further offences being committed, or where special circumstances additionally so require, there may be confiscation of items which were used or intended to be used in committing a criminal act, items resulting from a criminal act and items in connection with which a criminal act has been committed. Section 75(3) lays down that in place of the items referred to in Section 75(2) a sum may be confiscated corresponding to their value or a part thereof.
In cases involving offences concerning money, equipment and money seized is always confiscated, regardless of whether or not it is Danish or foreign currency. Confiscated equipment is destroyed when the criminal prosecution has been concluded. Confiscated currency, whether Danish or foreign, is kept by the Technical Department of the National Police Commissioner for purposes of comparison in any subsequent cases of counterfeiting. International cases are recorded in the same department, and reports are frequently sent to Interpol in Lyon.
In France , article 442-13 PC provides for the mandatory confiscation of the counterfeit or forged coins and banknotes, of the materials and instruments that were used to manufacture them, and of all the assets. The confiscated objects are sent either to the Administration for currency and medals, or to the National Bank of France, in view of their possible destruction.
Germany considers that the provisions in National law meet the requirements (§73 ss PC). Confiscation is not possible as long as a person that was damaged has not received compensation.
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Greek law provides for the compulsory confiscation of counterfeit currency and of the instruments, tools and means for the production thereof, even if no specific person has been prosecuted or convicted and regardless of whether or not such items belong to the principal or the co-principal of the counterfeiting offence. If , however, it is proven that the owner of the money or the material from which it was made was not involved in counterfeiting, the money will be rendered unfit for use and returned to the owner.
In Italy , the rule (Art 240 PC) is that, in general, the things that were used or intended for use in committing crime, and the things constituting the proceeds or profit of the crime must be confiscated. Counterfeit currency and the equipment used in the counterfeiting operations come within the scope of this provision. In addition (Art 321(2) PC) the courts may order the seizure of confiscatable property. Banknotes and coins established as counterfeit and subject to a confiscation order must, as soon as the order becomes enforceable, be transferred to the nearest branch of the Bank of Italy or the nearest office of the provincial Treasury, under the supervision of the office of the Court's clerk (Art 88 Code of Criminal Procedure).
Articles 109 et seq. of the Portuguese Penal Code provide in general terms for the forfeiture to the State of all property, instrumentalities, proceeds, benefits, rewards and funds used or intended for use in, or obtained through, the commission of a criminal offence. Forfeiture will be ordered even where no-one can be punished for the offence.
Where rewards, entitlements, property or benefits have been mixed in with lawfully acquired assets, the latter will be forfeited to the State for up to the estimated value of the former with which they have been mixed.
Wherever rewards, entitlements, property or benefits cannot be seized in kind, their forfeiture will be replaced by equivalent payment to the State.
With regard to forfeiture, the rights of bona fide third parties are safeguarded under the Penal Code (Articles 110 and 111(2)), under the legislation governing international judicial cooperation in criminal matters, Decree-Law No 43/91 (Article 27(3)), under the anti-drugs legislation, Decree-Law No 15/93 (Article 36a), and under Decree-Law No 325/95 referred to above (Article 17).
However, in accordance with the Penal Code, even if property belongs to a third party, its forfeiture will be ordered where its owner has improperly contributed to its use or procurement, or benefited from the offence, or where he has in any way acquired the property after the commission of the offence in the knowledge of its origin.
The Spanish Penal Code (art 127) provides in general for the forfeiture of proceeds from offences; they will be confiscated, and where not in licit trade, destroyed.
In Sweden the possibility of confiscation exists. On the other hand there are no rules which lay down that confiscated counterfeit currency or instrumentalities are to be passed on to a central collection office.
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The United Kingdom meets the requirements where the proceeds and property representing their value are concerned. As far as seizure of the counterfeit currency, tools etc. is concerned, the court may order any thing shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such a matter as the court may order.
6. JURISDICTIO
In accordance with Article 9 of the Geneva Convention, provision must be made for national courts to have jurisdiction in the case of certain offences committed abroad.
Question 1 : Under what conditions do the courts in your country have jurisdiction in cases where the counterfeiting of currency was perpetrated abroad?
Austria: Art. 64 sect. 1 no 4 PC provides that Austrian courts have jurisdiction in cases where the counterfeiting of currency according to Art. 232 StGB was perpetrated abroad, notwithstanding the law of the scene of crime, if through the commission of the offence Austrian interests are violated or if the offender may not be extradited.
If the offence/crime in question is not covered by Art. 64 - which is true for all other offences/crimes (Art. 233, 236, 239) - |Art. 65 PC is applicable as a subsidiary provision regulating 1. the "personality principle" (Personalitätsprinzip) referring to the Austrian jurisdiction over Austrian citizens and 2. the principle of taking over/representing a foreign state's jurisdiction (Prinzip der stellvertretenden Strafrechtspflege) in cases of foreign perpetrators having committed the offence abroad, who are caught in Austria and for certain reasons may not be extradited; both principles require the existence of an adequate law of the scene of crime.
Belgium: Offences involving coins, public securities and banknotes may be prosecuted in Belgium, regardless of the nationality of the perpetrator. However, in the case of coins, securities and banknotes of a foreign country, prosecution is subject to two conditions:
œ an official report to the Belgian authorities from the authorities of the State in which the offence was committed
œ the presence of the suspect in Belgium.
Separate regulations apply in the case of private securities.
Denmark: Offences concerning money committed abroad may be prosecuted in Denmark under the conditions stipulated in Sections 6 to 12 of the Penal Code.
In this connection attention is drawn in particular to the provisions of Sections 7, 9 and 10 of the Penal Code.
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Section 7(1) of the Penal Code provides that acts committed outside Denmark by a person who has Danish nationality by birth or is resident in Denmark fall within Danish jurisdiction where the act is committed outside an internationally recognised territory, provided that acts of the category in question carry a higher penalty than short-term detention and, where the act in question has been committed within such a territory, provided it is also an offence under the legislation in force there. Only acts which may be prosecuted under Danish law may result in criminal liability before a Danish court (see Section 10 of the Penal Code).
It is stated in Section 10(1) of the Penal Code that where prosecution takes place in Denmark under the provisions of the Penal Code, the decision regarding both the sentence and other legal consequences of the criminal act must be made in accordance with Danish legislation.
It is further laid down in Section 10(2) that in the cases referred to in Section 7, if the act is committed within an internationally recognised foreign territory, no heavier penalty may be imposed than is allowed under the legislation of the place where the act was committed.
A sentence may be imposed in Denmark for the counterfeiting of currency in Denmark, even where the currency is passed abroad. Similarly, the counterfeiting of (Danish or foreign) currency abroad by a foreign national may be prosecuted in Denmark where it has been done with the object of distribution in Denmark (see Section 9 of the Penal Code). Section 9 of the Penal Code accordingly provides that in cases where the nature of an act depends on or is affected by a supervening or intended consequence, the act shall also be regarded as having been committed in the place where the effect has supervened or was intended to supervene.
Finland: The Finnish courts have jurisdiction on counterfeiting money, preparation to that crime and use of that crime and use of counterfeit money as defined in the Geneva convention, even when committed abroad.
France: The French penal law applies to crimes and offences related to the fundamental interests of the nation, ...to the alteration and the counterfeiting of state seals, of coins, bank notes and government securities... committed outside the territory of the Republic ( Art 113-10 PC).
Germany: Counterfeiting money and its preparation (§ 146, 147, 152 PC) are offences in which the German Courts have jurisdiction regardless of the law of the place of commission (Universalitätsprinzip). As far as the procurement of counterfeit money is only covered by §147 PC, the personality principle (Personalitätsprinzip) and the principle of taking over/representing a foreign states jurisdiction (Prinzip der stellvertretenden Strafrechtspflege) apply.
Greece: Greek courts have jurisdiction in cases where the counterfeiting of currency was perpetrated abroad:
5429/99 JGV/kg EN DG H III 38 a) if it was perpetrated by a Greek national and provided that it is also punishable under the law of the country in which it was perpetrated or if the act was committed in a territory without state organisation (Article 6 PC), i.e. in that case the active principle of personality applies; b) if it was perpetrated by a foreigner abroad and was directed against a Greek citizen or was to the detriment of a possession of the Greek State (e.g. currency) provided that it is also punishable under the law of the country in which it was perpetrated or if the act was committed in a territory without state organisation (Article 7 PC), i.e. in that case the passive principle of personality applies; c) if, irrespective of where it was committed, the act, among other offences (high treason, etc.), was also directed against Greek currency (Article 8(g) PC), pursuant to the principle of protection of the State.
Ireland: Article 9 of the Geneva Convention applies to countries whose law recognises as a general rule the principle of the prosecution of offences committed abroad. Although there are exceptions, Irish law does not recognise this principle as a general rule.
Italy: Under Article 7(3) of the Penal Code Italian citizens or foreigners who, on foreign territory, have committed the offences of counterfeiting coins that are legal tender in Italian territory or counterfeiting Italian public paper are punished according to Italian law. Basically, therefore, Italian courts always have jurisdiction for cases of counterfeiting Italian currency, regardless of the place of an offence.
etherlands: Based on article 4 of the Dutch Criminal Code, the Dutch criminal law applies to all persons committing any crime, outside of the Netherlands, with regard to specie or coins or banknotes.
Portugal: Portugal applies the principle of territoriality in assessing the extent of its jurisdiction. However, it allows exceptions in cases specified by law. Hence, in accordance with the Penal Code, Portuguese criminal law is as a rule applicable to offences committed in whole or in part within Portuguese territory. However, for crimes covered by Articles 262 to 271, i.e. counterfeiting of currency and related offences, as described above, Portuguese law is also applicable to offences committed outside Portuguese territory.
Spain: As a consequence of the international relevance of these offences, Spanish law embodies the principle of extraterritoriality for prosecution of them. In accordance with Article 23.3(e) and 23.4(d) of the Organic Law of the Judicial Authority, Spanish courts will hear cases in respect of offences regarding the counterfeiting of Spanish and foreign currency committed by Spanish or foreign nationals outside Spanish territory.
Under Article 65.1(b) of that Law, jurisdiction to prosecute lies with the Criminal Division of the High Court ("Sale de lo Penal de la Andienca Nacional").
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Sweden: In accordance with Sweden's rules, its jurisdiction applies to offences committed outside the country, inter alia if they were committed by a Swedish citizen or a foreigner resident in Sweden or by another foreigner who is present in Sweden.
United Kingdom: There is no extra-territorial jurisdiction under this legislation. However, under the recent Criminal Justice (Terrorism and Conspiracy) Act 1998, it is now an offence to conspire within the UK to commit criminal offences abroad. A conspiracy within the UK to commit abroad any of the offences referred to in these answers will, therefore, now be an offence provided that it is also an offence in the foreign country. In addition, if currency is counterfeited abroad, it is an offence to possess it or tender it within UK jurisdiction.
Question 2 : Would it be conceivable to you for provision to be made for mandatory jurisdiction for all Member States if an act is directed against the euro, irrespective of the place of the offence (within the Union, but also outside it)?
Almost all Member States agree this would be conceivable.
France considers that answering this question would presuppose uniformity within Member States:
- of rules on prosecution (powers of investigating authorities, modalities of house searches and seizure, rules of evidence, ...)
- of the judgement procedure (role of the public ministry and lawyers, appeal procedures)
- of criminal provision (punishment, rules on the execution of a criminal judgement).
The UK usually operates on territorial jurisdiction, but would be prepared to review how jurisdiction would operate in connection with measures envisaged to tackle counterfeiting the euro. The UK would not want to see a distinction made between EU and non-EU jurisdictions in this context. Such a distinction could be exploited by counterfeiters.
Also Ireland points out that it could discuss general competence for its courts. 7. QUESTIO S CO CER I G CRIMI AL PROCEEDI GS
7.1. Fictitious purchase
In investigations of the counterfeiting of currency, an important role is played by police officers who do not identify themselves as such and simulate interest in purchasing counterfeit currency, in order to approach counterfeit rings (covert investigation); it should be pointed out in this connection that the European Court of Human Rights recently declared in a decision that incitement by police officers to purchase drugs œ the (3) use of an "agent provocateur" œ contravenes Article 6 of the ECHR .
(3) Case Teixeira de Castro v. Portugal, 9.6.1998.
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Question O1 : Are police officers authorised under your national law to purchase counterfeit currency without incurring criminal liability themselves? If so: Under what conditions is a fictitious purchase admissible? Who approves it (court, public prosecutor)? Under what area of law do such provisions fall (criminal law, criminal proceedings, police law, etc.)? If applicable, is allowance made, when the penalty is determined, for the fact that the perpetrator was provoked into committing the act?
Austria: According to Art. 25 Code of Criminal Procedure a police officer is not allowed to act as agent provocateur , which means to incite the commission, continuation or accomplishment of an offence with the intention to bring the offender to trial. (Art. 25 CCP does not proscribe under-cover investigations.) A court decision is not requested by law; however, in practice police authorities try to have the consent of the judiciary. Neither criminal procedural law nor police law provide for any further special regulations in this field.
A fictitious purchase therefore is allowed as long as the police officer does not arouse the initiative of the suspect to commit an offence. There is no criminal liability of the police officer if he only pretends to be interested to buy counterfeit money towards a person who already is determined to sell.
As for all offences, a police officer only would incur criminal liability himself if he fulfilled all physical as well as mental (intention) elements of the offence; for counterfeiting offences, it has to be born in mind that special intention is required (intention of putting it into circulation for the first time as genuine currency).
There are no special provisions for taking into account the contribution of a police officer when determining the penalty. In a concrete case, of course, the court would have the possibility to take this fact into account when determining the sentence.
Belgium: Police officers are so authorised under a ministerial circular of 1990, supplemented in 1992. The general conditions are a ban on any provocation, subsidiarity and proportionality. The operation is subject to the prior written consent of the Public Prosecutor. These provisions come under the rules on criminal procedure and the Government has undertaken, in the Action Plan against organised crime, to provide a legal basis for the whole body of specialist techniques in the Code of Criminal Procedure. Any police provocation will result in immunity from prosecution.
Denmark: According to Sections 754a to 754e of the Danish Law on the Administration of Justice, what is known as "agent provocateur" activity may, under extremely restrictive circumstances, be carried out.
Section 754a of the Law on the Administration of Justice thus states that the police must not, as part of the investigation into an offence, be responsible for offering assistance or making arrangements with a view to inciting an individual to commit or continue with the offence, unless:
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1. there is a particularly well-founded suspicion that the offence is about to be committed or attempted;
2. it will not be possible to secure proof in the case using other investigative measures, and
3. the investigation concerns an offence which can attract a sentence of six or more years' imprisonment.
Furthermore, the investigative measure must not cause an increase in the extent or seriousness of the offence (see Section 754b(1) of the Law on the Administration of Justice), and the arrangements must only be carried out by police officers (Section 754b(2))
It must in particular be noted that in principle it is the Court which has competence to take a decision on initiating the above mentioned arrangements (see Section 754c of the Law on the Administration of Justice). However, the police may take a decision of this kind where the aim of the operation would be thwarted if the court's decision had to be awaited. The operation must subsequently be reported to the court within twenty-four hours.
In addition, where it is intended to resort to this course of action, the police must inform the Public Prosecutor in advance.
There is no special provision in Danish criminal administration-of-justice legislation stating that such arrangements should entail any lesser penalty for the perpetrator of the offence.
Finland: A fictitious purchase is legal as long as no one is incited to commit a criminal offence during the purchase. There are no conditions specified in law for fictitious purchases, yet. The decision to purchase is made within the police organisation. For the moment, the right to a fictitious purchase is based on Chapter 36 Section 6 of the Criminal Law, which states that possession of false money is punishable only when committed "without acceptable reason". New provisions are included in a proposal for amending the Police Law, intended to be submitted to the Parliament during autumn. Provocation by police may, in principle, be taken into consideration when fixing the penalty for the perpetrator.
France: The involvement of law enforcement authorities in these techniques is restricted to drug related cases.
Germany: Police officers would generally not be punishable under §146 PC if they buy counterfeit currency in the course of a criminal investigation, because for this offence the intention of bringing counterfeit currency into circulation or making such circulation possible is necessary. When a police officer during his investigation orders the manufacture of counterfeit currency, incitement may be present, but the police officer , according to the majority opinion, would not be punishable, provided that the counterfeit does not come into circulation.
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The circumstance that the perpetrator has been provoked can be taken into account when deciding upon the penalty.
Greece: Greek criminal law does not provide for and does not allow the law enforcement agencies to purchase counterfeit currency with committing a criminal offence. (Fictitious purchase is permitted only in the fight against trafficking of drugs and other narcotic substances).
Ireland: The relevant offences, such as possession, are subject to the defence of lawful authority or excuse, which would apply to a member of the Garda Siochana (National Police Force) who takes possession of forged or counterfeit currency in the course of his or her duties. The extent to which an undercover Garda could in that capacity deal in forged or counterfeit currency would be a matter for the Garda authorities. A Garda could not, however, act as agent provocateur and incite the commission of an offence. The penalty for an offence is always a matter for the trial judge, who takes into account all the circumstances of the case.
Italy: Italian law makes no specific provision for police officers to purchase counterfeit currency without themselves incurring criminal liability, whereas such rules do exist e.g. for drug related crimes, money- laundering and weapons-related crimes, and under the recent law of the exploitation of prostitution and child pornography. The situation is therefore governed by the general rules on participation in crime.
etherlands: Under Dutch law, police officers are authorised to buy forged money within the scope of their investigations, without themselves being punishable, as long as the public prosecutor gives permission for these investigative activities, and the requirements have been met with regard to proportionality and subsidiarily. These requirements are presently not explicitly established by law; the subject in question is included under criminal law however. If the criminal act has been abetted, this results in the facts following on from this abetment being inadmissible for prosecution by the public prosecution department. A bill is currently under discussion which proposes inclusion of this subject in the Code of Criminal Proceedings. The proposed first sentence of article 128 of the Code of Criminal Proceedings allows the public prosecutor to order an investigating officer to buy goods from the suspect, for example when there is suspicion of a penal act as given in the answer to question K1. The second paragraph prescribes that the investigating officer may not abet the suspect to commit any other penal acts than that towards which there was originally an intention.
Spain: A " Bill to amend the Law on Criminal Prosecutions as regards improving investigative action into illegal trafficking in drugs and other related unlawful activities " was adopted by Parliament on 13 January 1999 (Organic Law 5/1999). Amongst other measures, this reform of the law confers legal status on the "undercover agent" in the context of investigations into organised crime. The main regulatory features regarding this new figure are as follows:
- the concept of organised crime is delimited for these purposes, specifying the types of crime to be included, one of which is the counterfeiting of currency;
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- in the case of investigations which concern the activities of organised crime proper, the Investigating Magistrate or Department of the Public Prosecutor (in the latter case, informing the Magistrate immediately), may, by a decision setting out the grounds on which it is based, authorise Criminal Investigation Department officers to act under an assumed identity granted by the Ministry of the Interior for a period of six months; in this way the officers are legally entitled to act under that identity in all matters connected with the specific investigation and are authorised to carry out a series of measures including the purchase of the objects, proceeds and instruments of the offence. Sweden: Police officers are not authorised to provoke crime which would otherwise not have been committed. On the other hand, authorisation may be given in certain circumstances for certain measures to be taken to secure evidence. This possibility, which is not regulated by the law, is to be used only where serious crime is involved (which should at least include serious counterfeiting of currency) and must have been approved by the prosecutor in the course of ongoing investigations. The use of this method should not affect the measurement of the penalty.
United Kingdom: UK law enforcement agencies refer to these purchases as "test purchases". The use of test purchases is not underpinned by statute but is governed by guidelines produced by the Association of Chief Police Officers (ACPO). The police and HM Customs and Excise are in the process of producing published codes of practice in relation to the use of various covert policing techniques and the one on undercover operations will cover test purchases. This code (which is currently in draft form) makes it clear that an undercover operation cannot be used to incite the commission of offences which would not otherwise have been committed, nor to entrap offenders who would not otherwise have been a party to the commission of such offences. Authorisation for test purchases will be given in writing by an authorising officer of superintendent rank or equivalent. Before granting an authorisation, he or she must be satisfied that:
* the test purchase is required in support of an investigation into a criminal offence concerning the possession, supply or use of a commodity or service and that reasonable grounds have been established prior to the deployment of a test purchaser to suspect that such a criminal offence is being committed;
* the desired result of the test purchase cannot reasonably be achieved by other means;
* the risk of intrusion into the privacy of someone other than the target have been properly considered.
No allowance would be made for the use of test purchases in determining the penalty as the perpetrator would not be provoked into committing a criminal act which he would not otherwise have committed.
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Question O2 : Should uniform rules apply in such a case in all the Member States? Almost all Member States do not see any necessity to introduce uniform rules . Some refer to recent rulings of the Court of Human Rights in Strasbourg, concerning the use of "agent provocateur". Different historical and legal traditions account for the fact that rules in this sphere are likely to reveal major differences. One Member State mentions that some comparison could be studied.
7.2. Counterfeit currency is usually important as evidence in criminal proceedings . On the other hand, a thorough technical and statistical analysis of the forged banknotes or coins (and the counterfeiters' tools) is required for the constant improvement of security features. Thus, even Article 11 of the Geneva Convention provides inter alia for such items to be handed over to the Government or bank of issue whose currency is in question. To protect the euro, a central office for counterfeiting analyses is to be set up under the responsibility of the European Central Bank.
Question P1 : Are there provisions under your national law to ensure that counterfeit currency is forwarded by the judicial or security authorities to the office responsible for handing over the currency?
In almost all Member States there seem to be rules on forwarding counterfeit currency to specialised authorities (except Denmark, Finland, Sweden) . However, different authorities seems to be involved in the Member States (Police, National Bank, Specialised sections), and in some Member States there seems a distinction to be made between banknotes and coins.
In Austria Art. 136 sect. 3 StPO obliges courts to forward counterfeit banknotes to the Austrian issuing bank ("Österreichische Nationalbank"/ONB) and counterfeit coins to the Austrian mint ("Münze Österreich AG").
Foreign currency is according to the Code of Criminal Procedure to be forwarded to the Ministry of Justice. A ministerial order issued by the Ministry of Justice in 1997, however, recommends to forward foreign currency to the ONB.
The same obligations are true for police authorities investigating counterfeiting cases.
In Belgium , the aforementioned Bureau for the Suppression of Counterfeit Currency, which has been integrated into the General Police Support Service's Operational Assistance Division, is responsible for this task. Counterfeit or false coins or banknotes must be included with the police report so that the competent magistrate can hand them over to the Bureau immediately. Where the counterfeit currency involved is Belgian, the Bureau ensures that it is handed over to the National Bank of Belgium for examination and analysis by experts.
Danish legislation has no rules on sending counterfeit currency to the Government or to the bank of issue whose currency is in question. See also the replies to question M1.
There are no such provisions in Finnish law. The practice is that the police show the counterfeit currency to the central bank when the latter is interested to scrutinise it.
5429/99 JGV/kg EN DG H III 45 In France , article 442-13 PC provides for the mandatory confiscation of the counterfeit or forged coins and banknotes, of the materials and instruments that were used to manufacture them, and of all the assets. The confiscated objects are sent either to the Administration for currency and medals, or to the National Bank of France, in view of their possible destruction. Furthermore article 38-2 of the Code on monetary instruments and medals provides that any one who receives counterfeit or forged monetary objects must transmit them to the Bank of France (bank notes) or to the Administration for the Mint (coins)
In Germany , Art. 36 of the Law on the German Federal Bank provides that all financial institutions have a duty to freeze counterfeit currency, and to send it to the Police while informing the Federal Bank. Counterfeit currency has to be submitted to the Federal Bank for expertise, which confirms the counterfeit.
In incorporating the above mentioned Geneva Convention, Greek law makes provision - in accordance with Article 11 of the Convention - for counterfeit currency to be handed over by the competent authorities (courts, police departments) to the issuing authority.
In Ireland there is a provision for forged or counterfeit currency to be given to the Central Bank.
In Italy , Article 74 of the rules implementing the Code of Criminal Procedure, approved by Legislative Decree No 271 of 28 July 1989, lays down that in prosecutions involving the counterfeiting of banknotes or coins, the expert task of establishing that the currency is counterfeit must be entrusted to representatives of a central office with the relevant expertise; in other words for banknotes, to an expert in the general management of the Banca d'Italia (the issuing bank) and, for coins, to an expert in the general management of the Treasury (section within the Ministry for the Treasury, Budget and Economic Programming).
If coins are believed to be forgeries, they may be presented to the etherlands Mint for inspection, in accordance with article 8 of the Currency Act 1987. Confiscated coins which are believed to be counterfeit, forged or damaged will be stored by the Netherlands Mint in accordance with article 1 of the Act on confiscated articles.
Portugal indicates that there are such provisions in national law.
In Spain , the Bank of Spain's Investigation Branch, incorporated in the Criminal Investigation Department, is responsible for co-ordinating all matters that have to do with the counterfeiting of Spanish or foreign currency and is linked through Interpol to the general secretariat of the ICPO.
Circular letter No 633 of the CID, dated 18/2/1980, on the co-ordination of police action with regard to the counterfeiting of currency, lays down a series of instructions which are aimed at ensuring that the Investigation branch of the bank of Spain receives:
- a copy of all the police reports made on all proceedings related directly or indirectly to counterfeiting of Spanish or foreign bank notes,
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- wherever possible, in addition to the copy of the report one of the counterfeit banknotes; a record is made in the proceedings that the counterfeit note has been sent to the Bank of Spain for expert examination. In all other cases a photograph or a photocopy of the counterfeit is to be sent.
Sweden has no specific rules in national law (see M1).
There are no special legal provisions in the United Kingdom . However, Home Office instructions give the arrangements for disposal of counterfeit currency. Counterfeit sterling identified at a branch of a Bank or Building Society or at a Post Office may be sent to the issuing bank if there is no information which would enable a realistic prospect of a successful police investigation. There is nothing to prevent a bank, building society or post office calling in the police if they wish to do so. Counterfeit currency identified by a member of the public or a shopkeeper should be handed to the police for transmission to the National Criminal Intelligence Service (NCIS).
Question P2 : Should the Member States be required to hand over counterfeit currency to the European Central Bank or to a body subordinate thereto for technical and statistical analysis?
1. Several Member States emphasise that there would clearly be advantages in having a central body which would be able to analyse trends in counterfeiting techniques.
2. Whether such analysis should be carried out by a body yet to be set up under the aegis of the European Central Bank or can continue to be performed by national central banks is an open question. Some Member States suggest it may perhaps be useful for such analysis to be conducted in the countries in which the currency is found and for the results then to be centralised and stored at the European Central Bank.
3. One Member State points out it would seem adequate that each country be required to make a qualified national organisation responsible for the investigation. Provisions could be made to make the information generated by that investigation, available to other Member States, via a common databank, for example.
4. Spain mentions that according to the information received from the Bank of Spain, there is already a Guideline from the Central European Bank stipulating that, subject to national restrictions, the Central Banks of the Member States must send specimens of detected counterfeit Euro notes to a "Centre for Statistical Investigation".
The Guideline is binding on the Central Banks and its aim is to enable the Centre, as a subordinate body of the European Central Bank, to carry out technical and statistical assessment of counterfeit euro notes.
Question P3 : In the light of Articles 12 to 15 of the Geneva Convention, relating to the creation of central offices, does your country have a procedure for centralising investigations or prosecutions where successive discoveries of a known and identified counterfeit currency are made, If so, describe it. If not, what practice is followed in your country?
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Police authorities in Austria are obliged to inform the central office ("Falschgeldreferat" of the Ministry of the Interior, dep. II/10) of every counterfeiting case. The ONB sends every analysis report to this central office.
Belgium points out that this task is also performed by the Central Bureau for the Suppression of Counterfeit Currency. Judicial procedures are centrally followed up and any information discovered in the course of a judicial investigation is handed over to the Bureau, which at the same time gathers any information of relevance in connection with the investigation, prevention and prosecution of such offences.
In Denmark , the investigation and prosecution of crime, including currency counterfeiting, takes place in the individual police districts. Denmark does not therefore have a central authority handling prosecutions in this area.
However, forensic examination of counterfeit currency is centralised at the Forensic Department of the Office of the Commissioner of Police, where counterfeit currencies are held and registered. The said Forensic Department investigates the method of counterfeiting and the materials used, and carries out cross checks with earlier cases of counterfeiting and with relevant information and any comparative material from abroad. The forensic declaration drawn up in connection with a currency counterfeiting investigation is sent to the relevant police district together with a summary report on the possible place and time of corresponding counterfeiting in Denmark. A report is also made to Interpol.
The Forensic Department of the Office of the Commissioner of Police also maintains contacts with the National Bank of Denmark, which is kept informed, among other things, of the technical aspects.
The investigations in Finland are centralised in the Central Criminal Police with the exception of minor cases. The latter are being dealt with by local police. Usually the criminal proceedings concerning a certain block of counterfeit money are also centralised to a single trial. So are the prosecutions, also, in these cases.
As for France , at police level a special service, called " l'Office centrale pour la répression du Faux- Monnayage" (OCRFM), was established at the Direction Centrale de la Police Judiciaire. Its mission is to note and suppress counterfeiting offences, eventually in co-operation with the local services of the judiciary police. At judicial level, the Minister of Justice has published on 19/2/97 a circular letter concerning the coordination of the public action against counterfeit and putting into circulation of currency. The prosecution of counterfeit was centralised in different point throughout the territory. The investigating judge in charge of an investigation commits the OCRFM that then co-ordinates the activities and actions undertaken by the local Judicial Police. Codes of conduct are made upon the following three hypotheses: a) discovery of a not yet known counterfeit: the fundamental rule is that a judicial investigation is started on the basis of counterfeit, whatever other offence may be involved. The investigating judge will be competent for all the elements of the act up to the date of the opening of the investigation , concerning counterfeit, transport, possession, and putting into circulation of the counterfeit currency;
5429/99 JGV/kg EN DG H III 48 b) discovery of already known counterfeit and immediately identifiable. Up to a certain sum, the unlawful possessor is invited by official paper or by police at a later date. Above this level, the investigating judge will be charged by the prosecutor with a judicial investigation. The intervening police authority must notify the facts to the OCRFM for strategic reasons, and to the Bank of France; c) discovery of not immediately identifiable counterfeit: the local competent public prosecutor starts an inquiry, eventually followed by a judicial investigation by an investigating judge.
In Germany , the Central Office is at the Federal Office on Criminal Investigation (Bundeskriminalamt- BKA), Section OA 33. In Germany local police authorities inform the BKA about counterfeits. The Federal Bank classifies the cases, according to § 92 of the Code of Criminal Procedure. In cases of international organised counterfeit, the BkA is the competent police authority. The Public Prosecution Offices can also commit other police authorities. In cases concerning different Länder, the BKA can, in agreement with the Prosecutors' General Office commit the local authority in one Land. There is no central unit at the prosecution level. In Germany, a central register is kept on prosecutions that concern more than one Land. There is also no central judicial authority competent for counterfeit of currency.
Greece has set up a Counterfeit Research Laboratory as central office within the Directory for criminal investigations, which has national competence in Greece. The tasks of this Laboratory can be described as follows:
1) technical analysis of counterfeited banknotes or coins;
2) register different types of counterfeit, techniques, descriptions of counterfeiters, gathering of evidence, identification and search of perpetrators, victims and witnesses, communication with the Central Office of the Police and with the law enforcement authorities of foreign states. These tasks are carried out by a team of experts,
In Ireland , investigations and prosecutions in the area of counterfeit currency are centralised at the office of the Garda Bureau of Fraud Investigations. The Bureau has national responsibility for the investigation of all fraud related offences. In the Bureau the competent section is the Counterfeit Cheque/Currency Section.
In Italy , the counterfeit banknotes are forwarded to the Banca D'Italia's Counterfeit Banknotes Office, where they undergo all the necessary investigations at the hands of a commission of experts. This commission draws up a technical report on each counterfeiting case and to each new case it assigns a classification code number based on the denomination of the note.
The Office sends the technical reports to Interpol's Italian office, which forwards them to Lyon for publication in "Counterfeit and Forgeries" in Amsterdam.
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In The etherlands a special unit within the Central Information Investigation Department of the National Police services is in charge of providing information on (inter)national, regional and local developments in investigations concerning counterfeit. Police teams can use the expertise that is present in this unit and provide it with all relevant information of specific cases. The Unit can also coordinate investigations. There are no regulations on centralisation of investigations and prosecution of counterfeit.
Portugal has designated the Judicial Police as the authority which centralises the investigations and repression in accordance with article 12 of the Geneva Convention. Within the Judicial Police, the National Unit for Information on Organised Economical Crime (UNICEO), operates as central unit, for the collection of information on counterfeit and passing on counterfeit currency, which is also sent to Interpol. Since two years a protocol on cooperation has been established between the Bank of Portugal and this Unit. Regular meetings are organised between the two bodies, with the assistance of the Laboratory for Scientific Police of the Judicial Police for matters concerning equipments. In line with article 15 of the Convention, international meetings are organised between the central bodies and the banks issuing currency.
In Spain the Central National Office for the counterfeiting currency has been assigned to the Investigation Branch of the Bank of Spain, under the Criminal Investigation Department.
In Sweden , the National Criminal Investigation Department may, at the request of local police authorities, co-ordinate investigations.
The United Kingdom central body is the National Criminal Intelligence Service (NCIS). Its counterfeiting database is linked to the Bank of England.
Question P4 : Have the authorities in your country encountered any particular problems relating to international judicial cooperation when seeking to obtain evidence in the context of criminal investigations?
Most Member States do not have any particular knowledge about particular problems in this field other than the usual difficulties in collecting evidence in international criminal matters. France emphasises that the rules on evidence , different according to each state, will create difficulties in mutual legal assistance.
Ireland points out that it has been found on occasion that there is a reluctance on the part of some countries to hand over evidence which may result in the prosecution of a citizen of that country to a foreign jurisdiction.
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9. GE EVA CO VE TIO
Question Q1 : Has your Member State ratified the Geneva Convention? What reservations are still maintained?
Austria, Belgium, Denmark, Finland , France, Germany, Ireland, Italy, the etherlands, Portugal, Spain and the United Kingdom have ratified the Convention and have not made reservations.
Greece , without prejudice to the relevant provisions of the Geneva Convention, has jurisdiction over offences against the national currency (and therefore also the Euro) committed abroad, given the importance of the currency, pursuant to the principle of protection of the State, that is to say, it may prosecute nationals and aliens under Greek criminal law, irrespective of the law of the place where the offence was committed.
Sweden did not ratify the Convention. As to question Q2, no further thought has been given to this matter. Sweden mentions that its regulations ought already to satisfy most of the provisions of the Convention.
UK ratified without reservations. The UK also acceded in October 1960 in respect of most of its then overseas territory, including Gibraltar, but not the off-shore islands, and in respect of Barbados and its dependencies on March 1963.
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