At the end of last year, in view of the increasing hardening of crime, parliamentary questions were again asked about the possibility of reporting unusual transactions anonymously to the FIU (Financial Intelligence Unit Nederland). As in 2016, the Minister again indicated that this was not considered desirable in the light of the investigation and prosecution and that an exception could only be made in very exceptional cases. In their blog, Sascha and Elena explain why.
In 2016, questions and answers in the Dutch House of Representatives were published regarding whether it would be possible for civil-law notaries filing reports of unusual transactions pursuant to the Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en terorrismefinanciering, “Wwft”) to do so without their identity being disclosed in the criminal case file, given the potential risks (such as threats) that might then arise. At the time, the answer given by the Minister of Justice and Security was (briefly stated) that that was neither possible nor desirable within the current legal frameworks. The reasons provided were as follows. The Financial Intelligence Unit Netherlands (“FIU-NL”) and the Public Prosecution Service (“PPS”) needed to be able to verify, supplement, or clarify the report of an unusual transaction. It was also stated that data regarding reporting parties was in any case handled with care. Wherever possible, the PPS would be cautious about stating the name of a reporting party in a criminal file, which does not alter the cases where a transaction declared suspicious by the FIU-NL was important in a criminal case, the transaction might need to be referred to in the file, seeing that both the suspect and the court had to have the opportunity to assess the investigation and therefore also the suspicious transaction.
Given how crime is becoming more ruthless, the Dutch Socialist Party (De Nederlandse socialistische partij, SP) again asked questions in the House of Representatives (on 21 October 2019) as to whether it would be possible for data on parties filing a report of an unusual transaction pursuant to the Wwft to be omitted from criminal case files. One of the questions concerned whether the Minister would be willing to urge the PPS and FIU-NL to ensure that no details of a reporting party – of whatever profession, but in particular civil-law notaries – were included in such files, so as to prevent the party concerned being threatened (or worse). The Minister was also asked whether he would be willing to investigate whether a system could be set up whereby reports of unusual transactions from members of the notarial profession would no longer be submitted by individual notaries, but by the Royal Notarial Association (“KNB”).
The Minister’s answers to the Parliamentary questions of 21 October 2019 were published on 29 November 2019. The Minister reiterated that when analysing an unusual transaction, the FIU-NL must be able to verify the information in the report of that transaction, and must be able to request further information from institutions. Transactions that are ultimately declared suspicious are made known by the FIU-NL to various (special) investigative, intelligence, and security services. The information that the FIU-NL provides on a suspicious transaction – which is basically reproduced in full in the criminal case file – also includes the company or office name of the reporting entity. The reasons for this were the same as in 2016. It was also stated that the legal requirements with regard to the specific substance of the indictment meant that the facts could basically be traced back to a report. It is only when a threatening situation arises as a result of an unusual transaction being reported or a statement made about it that an exception can be made to protect the reporting entity. In such cases, a decision may be taken to question the entity in accordance with the procedure for examining anonymous witnesses, with witness-protection measures then being put in place.
It had in any case already been agreed with the KNB – after the Parliamentary questions in 2016 – that civil-law notaries could report threats to the National Prosecutor for Combating Money Laundering. Up to the point when the answers to the Parliamentary questions of 29 November 2019 were published, no reports had been received (except for one that was announced as forthcoming but was ultimately not in fact submitted) from civil-law notaries regarding threats they had received relating to their reporting unusual transactions. Nevertheless, the Minister indicated that he is willing to consult with the KNB so as to investigate whether and how improvements could be made to the reporting process.
Please don’t hesitate to contact us if you have any questions about the above, or other questions about the Wwft or your obligation to report.