elected representative ought to enjoy in Parliament, of the citizens of many countries” in the world are
no longer violated.
This issue may seem to be of lesser importance in practice, but only until the first court case is decided
on the basis of a court finding that the FATF recommendations and their implementation are violating
a country's constitution. Until then, this issue has no effect on the daily business of AML/CFT com-
pliance.
3.2 The potential lack of proceed of crime when facing tax crime
Many and long articles have been written about the question whether money legally earned and le-
gitimately transferred on a bank account or invested into a portfolio can be “proceed of crime”, which
is a legal requirement in many AML acts around the globe to commit ML. In many countries, the law
defines the term “proceed of crime”.
As for the example of Austria”, the legal definition in $ 165 para 5 Criminal Code is limited to “asset
components" (in German: Vermógensbestandteile), i.e. parts of assets that the offender has either ob-
tained himself through the offense or for its commission or if the value of the originally obtained or
received assets are embodied in it.” While this definition is very broad by covering not only the pro-
ceeds themselves, the interests and investment yields derived from the criminal proceeds but also as-
sets obtained to commit an offence, i.e. an instrumentality and not a proceed, it is too small at the same
time by not covering any “pecuniary advantage” as a result of a crime to be proceeds of crime, which
would be necessary to cover e.g. legal earnings that have not been declared tax-wise.
? See e.g. Art. 38 para 1 of the German constitution (Grundgesetz), Art. 161 para 1 of the Swiss constitution
(Bundesverfassung), and Art. 56 para 1 of the Austrian constitution (Bundes-Verfassungsgesetz), and Art. 57
para 1 of the Liechtenstein constitution (Verfassung).
?! As explained by Mag. Rainer Brandl, attorney-at-law with the law firm LeitnerLeitner, Linz/Wien/Zürich,
during his presentation entitled “Steuerdelikte als Vortaten für Geldwäsche in Osterreich” given at the 12"
AML/CFT Conference in Zürich entitled ^ Aktuelle Entwicklungen in der Bekämpfung der Geldwäscherei und
der Terrorismusfinanzierung”, organised by Kunz Compliance, Bern, www.compliance.ch.
% The German text of § 165 of the Austrian Criminal Code can be found in footnote 17 above, including para 5.
44
