Restructuring

The court is not bound by the assessment of the fact as a misdemeanor and may, ex officio or at the request of the Public Prosecutor's Office, convert the case into a criminal case.

If such a situation occurs, the court should apply the regime established in the Criminal Code and complementary legislation to the crime in question. This may vary from case to case and punishments may include prison sentences and criminal fines.

However, there are certain criminal offences for which the law already provides for the criminal institute to apply, such as the illegal activity of receiving deposits and other repayable funds, for which the law provides that those who carry out activities consisting of receiving deposits or other repayable funds from the public, on their own account or on behalf of others, without the necessary authorization, shall be punished by imprisonment of up to five years.

Notwithstanding this provision, the regime established in the Criminal Code and complementary legislation shall always apply.

ASIC can and does pursue criminal charges (working with the CDPP) when it considers the conduct involved warrants it. ASIC will generally only consider criminal action for offences involving serious conduct that is dishonest, intentional or highly reckless, even if a civil remedy is available for the same breach. Such offences include:

• insider trading;
• a breach of statutory duty by a director; and
• market manipulation.

The same is also true for some of the other regulators listed, for example for cartel conduct (the ACCC), or failure to withhold withholding tax or committing a tax fraud or evasion (the ATO), or breaches of reporting requirements under Australia's AML/CTAF legislation (Austrac).

Current regulatory enforcement outlook

A major judicial inquiry into the Australian financial services sector held in 2018/2019 has resulted in Australian regulators switching to a 'why not litigate?' stance. This has resulted in regulators proceeding with court proceedings in circumstances where, in the past, they may have sought to reach a negotiated outcome on penalties to be imposed for breaches of non-criminal contraventions of legislation.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches under the Money Laundering Regulations; and
• engaging in regulated activities without proper authorization.

Following formal investigation, the offenders are subject to criminal penalties in certain cases, including, but not limited:

• insider dealing and misleading statements and practices;
• breaches of the Money Laundering Regulations; and
• conducting regulated activities when not authorized.

These penalties are mainly set out in the Acts on Crimes Against the National Financial System (Act No. 7,492/86); in the Act on Tax Evasion and Crimes Against the Economic Order (Act No. 8.137/90) and in the Anti-Money Laundering Act (Act No. 9.613/98). The penalties may range from fine to imprisonment.

Apart from the above-mentioned criminal Acts, companies are also subject to the administrative and civil sanctions set forth in the Brazilian Clean Company Act (Act No. 12,846/2013), in case of illicit acts committed against the Brazilian or foreign public administration.

According to the mentioned Act 7,492/86, both Central Bank and CVM are entitled to assist the Federal Prosecution Office in the course of the criminal action whenever the crime is practiced in the context of the activities that are subject to the regulators’ discipline and inspection.

Depending on the nature of the breach, the applicable regulatory authority may disclose cases of non-compliance to law enforcement, including, but not limited to, cases relating to:

• insider dealing;
• breaches of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada); and
• fraud.

Criminal penalties may include fines and/or imprisonment.

The persons or legal entities engaging in banking activities, such as accepting deposit in a customary manner from the public or as broker, commits a criminal offence and is liable to imprisonment (from 541 days up to five years) and can also face charges as author of fraud.

Regarding the registry of securities, any person or legal entity that fails to obtain the proper authorization is liable and obliged to compensate damages due to the breach and shall be subject to administrative and criminal sanctions (imprisonment). In addition, in case of misleading information submitted before the CMF, criminal sanctions such as imprisonment may apply.

The Colombian Criminal Code introduced criminal rules and regulations to prevent, control, detect, eliminate and prosecute all matters related to financing terrorism and money laundering. The criminal rules and regulations cover the omission of reports on cash transactions, mobilization or storage of cash, and the lack of controls.

In accordance with the Act No. 40/2009 Coll., Penal Code (Trestní zákoník), the criminal justice institutions have powers to impose criminal penalties in certain (finance and investment related) cases, including:

• under Section 251 – criminal offence of unauthorized entrepreneurial activities, which may lead to up to eight years of imprisonment, monetary penalty, punishment by disqualification or the dissolution of a legal entity;
• under Section 248 – criminal offence of violation of Regulations on Rules of Competition (eg misleading advertising or misleading labelling of goods and services), which may lead to up to eight years of imprisonment, monetary penalty, punishment by disqualification, forfeiture of items or the dissolution of a legal entity; and
• under Section 216 – criminal offence of money laundering which may lead to up to eight years of imprisonment, monetary penalty, punishment by disqualification, forfeiture of items, forfeiture of property or the dissolution of a legal entity.

According to Sections 16, 17 and 18 of Act No. 418/2011 Coll., on the Criminal Liability of Legal Entities and Proceedings against them (Zákon o trestní odpovědnosti právnických osob a řízení proti nim), where the punished legal entity be a bank, credit union, insurance and reinsurance company, investment firm, pension fund, central securities depository, electronic money institution, payment institution or regulated market operator, a statement of the Czech National Bank is required.

Criminalized activities include inter alia:

• insider dealing, misleading statements and practices and manipulating the markets;
• breaches of money laundering regulations; and
• conducting regulated activities without authorization.

The criminal penalties vary between fines and imprisonment.

Following formal judicial proceedings, French courts have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of the Money Laundering Regulations; 
• conducting regulated activities when not authorized; or
• any other breach of applicable rule such as prudential, good conduct rules, etc. 

A person undertaking a regulated activity without being authorized or exempt, commits a criminal offence and is liable to imprisonment of up to five years.

There are further criminal penalties, eg for market abuse and for money laundering.

Bank of Ghana

Breaches of Act 930 as well as any conditions imposed by the Bank of Ghana on any of the entities it regulates may result in criminal prosecution.

A person convicted of an offense under Act 930 may be liable to a fine of the amount or a term of imprisonment for the number of years provided for that offense.

Securities and Exchange Commission

Breaches of the Securities Industry Act, 2016 (Act 929) as well as any conditions imposed by the Securities and Exchange Commission on any of the entities it regulates may result in criminal prosecution.

For a breach of Act 929 which constitutes a criminal offense, a person may be liable on summary conviction to a fine for an amount or to a term of imprisonment specified in relation to the particular breach, or to both. If no penalty is specified, a fine of between GHS1,800 and GHS6,000 or term of imprisonment of between one year and three years or both may be imposed. For example, a person who fraudulently induces another person to deal in securities is liable on summary conviction to a fine between GHS12,000 and GHS30,000 or to a term of imprisonment of between four to five years or to both.

National Insurance Commission

The First Schedule of the Insurance Act, 2006 (Act 724) sets out a list of offenses created by the Insurance Act, 2006 (Act 724) and applicable penalties. A person summarily convicted of an offense under the Insurance Act or who contravenes any of its provisions is liable to a fine (including where applicable, a daily default fine for each day that the default continues) or, in the case of an individual, a fine or term of imprisonment or to both. If a penalty is not provided for an offense, a maximum fine of GHS12000 may be imposed. Directors and officers of corporate bodies as well as partners of a partnership convicted of an offense may be liable for the offense unless they can prove that it was committed without their knowledge after they had exercised due care and diligence to prevent the offense from being committed.

National Pensions Regulatory Authority

For a breach of the Pensions Act, 2008 (Act 766) which constitutes a criminal offense, a person may be liable on summary conviction to a fine for an amount or to a term of imprisonment specified in relation to the particular breach, or to both. If no penalty is specified, a fine of GHS12,000 or term of imprisonment of not less than one year or both may be imposed.

For example, a trustee, pension fund manager, custodian or director who misappropriates pension funds is liable on summary conviction to a fine of an amount equal to three times the amount misappropriated or to a term of imprisonment not less than ten years or to both. Directors and officers of corporate bodies convicted of an offense may be liable for the offense unless they can prove that it was committed without their knowledge after they had exercised due care and diligence to prevent the offense from being committed.

Following formal investigation, the criminal courts have the power to impose criminal penalties in certain cases, including:

• insider dealing;
• unlawful disclosure of inside information;
• unlawful market manipulation;
• organization of pyramid schemes;
• money laundering; and
• unauthorized financial activities.

Following judicial proceedings, Irish courts have powers to impose criminal penalties in certain cases, including:

• financial crime, including money laundering and terrorist financing (or their equivalents);
• fraud, misrepresentation, dishonesty or breach of trust;
• offences under legislation relating to companies or financial services providers;
• market manipulation, insider dealing, revenue law; and
• conducting regulated activities when not authorized.

Following the inspections carried out, in the event of breaches of the regulatory provisions, the regulators may impose criminal penalties such as fines and/or imprisonment.

According article 36 of the appendix relating Composition, Organization, Functioning and attributions of the Regional Council of the Public Savings and Financial Markets, regulators have powers to impose criminal penalties in certain cases, to any person who, intentionally:

• does not respect the restriction, suspension, or prohibition of professional activity that has been notified to him by the Regional Council;
• spreads false information in the public about the stock market and its products;
• performs a stock market maneuver aimed at hindering the regular operation of the market;
• overrides a decision to reject an application or withdraw a visa taken by the Regional Council;
• infringes the monopolies of stock exchange trading and securities accounts vested in management and intermediation companies;
• commits an insider trading.

In addition, in the case of a legal person, the de jure or de facto managers will be liable to the same proceedings if they become aware of these acts.

The financial conduct authority can’t apply criminal penalties. They may just apply the sanctions specified above. Criminal penalties are applied by national court.

Criminal penalties may be imposed in cases involving:

• false statements;
• insider trading;
• rumour spreading;
• fraud; and
• market manipulation.

Following formal investigation, the Luxembourg criminal courts have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of the money laundering regulations; and
• conducting regulated activities when not authorized.

The FSC may institute criminal proceedings against any person in respect of any offence under the relevant Acts it manages. This may take the form of fines and/or imprisonment.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT) Regulations; and
• conducting regulated activities when not authorized.

The criminal sanctions that may apply to credit institutions and their employees are listed under Moroccan law.

These include, in particular:

• imprisonment of up to three (3) years;
• fine of up to MAD2 million;
• closure of the establishment where the offence was committed;
• publication of the judgment in the newspapers designated by the court at the convicted person's expense.

Following formal investigation, an offence can be charged criminally. The Dutch regulators do not have criminal powers themselves. They will have to report the criminal offence to the District Attorney, who can then decide whether or not to prosecute the offence.

Offences that can be charged criminally include:

• insider dealing and misleading statements and practices;
• breaches of the Money Laundering Regulations; and
• conducting regulated activities when not authorized.

The criminal penalty could entail a fine, a community service order and/or imprisonment.

Criminal offences can apply under the Reserve Bank of New Zealand Act 1989 when the offences relate to:

• the supply of information;
• the registration of banks;
• disclosure statements; and
• the prudential supervision of registered banks (amongst other miscellaneous provisions).

The maximum term of imprisonment can be up to 18 months or a fine of NZD200,000 for an individual or in the case of a body corporate of up to NZD2 million.

Criminal offences under the Financial Markets Conduct Act 2013 apply for deliberate defective disclosure and making false statements. The maximum penalty for individuals is 10 years’ imprisonment and/or a NZD1 million fine, and in any other case a NZD5 million fine.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of the Money Laundering Act of 2009; and
• conducting regulated activities when not authorized.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of the Anti-Money Laundering and Terrorism Financing Regulations; 
• conducting regulated activities when not authorized; and
• bribery practices with public officials and private persons.

Following a formal investigation, the regulators have the power to impose administrative and criminal sanctions for the following unlawful acts:

• insider dealing and misleading statements and practices;
• breaches of the Money Laundering Regulations; and
• conducting regulated activities when not authorized.

Regulators will co-operate with competent authorities to conduct criminal investigations where appropriate. The decision of a competent authority in respect of an investigation is subsequently communicated to the relevant regulator. When an entity commits a criminal offence, it may be liable to penalties including fines or the imprisonment of responsible persons.

Criminal penalties may apply to the extent that the Puerto Rican Criminal Code is violated or if US federal laws are violated. Generally, this occurs in cases of insider trading, material misstatements, money laundering, and when carrying out regulated activities without authorization.

The breach of various legal provisions in the banking and financial investment services fields (such as performing credit activities or financial intermediation on a professional basis without being authorized) may constitute criminal offences punished with imprisonment or otherwise in accordance with the Romanian Criminal Code. The competent courts of law are involved in the actual application of the criminal sanctions.

The regulator itself is not allowed to impose criminal penalties, this can only be done by a court.

Criminal penalties may apply to certain actions specified in the Criminal Code of the Russian Federation, such as:

• performance of commercial activities without registration or a license;
• performance of banking operations without registration or a license;
• malicious avoidance of disclosure or distribution of information under the laws on the securities or distribution of knowingly incomplete or inaccurate information;
• market manipulation or insider dealing;
• fraud in the sphere of lending;
• unlawful receiving of a credit; and
• malicious avoidance of credit repayment.

The financial regulators have powers to impose criminal penalties in certain cases, against any person who, intentionally:

• does not comply with the restriction, suspension, or prohibition of professional activity that has been notified to it by the Regional Council; (Article 36 of the appendix relating to the Composition, Organization, Functioning and attributions of the CREPMF);
• spreads false information in the public about the stock market and its products;
• performs a stock market maneuver aimed at hindering the regular operation of the market;
• overrides a decision that rejects an application or withdraws a visa taken by the Regional Council;
• infringes the monopolies of stock exchange trading and securities accounts vested in management and intermediation companies; and
• commits an insider trading.

Moreover, in the case of a legal person, the de jure or de facto managers will be liable to the same proceedings, if they become aware of those acts.

The financial conduct authority cannot apply criminal penalties. They may just apply the sanctions specified above. Criminal penalties are applied by national court.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of the money laundering regulations; and
• conducting regulated activities when not authorized.

Following formal investigation, the court may impose criminal penalties for any criminal offences, including:

• fraud, capital fraud;
• violation of obligations of trust;
• money laundering; and
• conducting business activities when not authorized.

POCA

The primary piece of legislation to combat organized crime, racketeering and money laundering is the Prevention of Organized Crime Act (POCA). In terms of POCA the courts may impose severe punishments in the form of fines or, in certain instances, imprisonment.

Convictions for racketeering activities can result in a fine of up to ZAR1 billion or life imprisonment being imposed.

Money laundering convictions may result in a fine of up to ZAR100 million being imposed or possible imprisonment for up to 30 years.

Competition Act

Any person convicted of an offence in terms of the Competition Act is liable to a fine not exceeding ZAR500,000 or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.

Companies Act

Any person convicted of an offence in terms of the Companies Act, is liable:

• in the case of a contravention of section 213 (1) (disclosure of confidential information) or 214 (1) (false statement, reckless conduct and fraudulent conduct) to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and imprisonment; or
• in any other case, to a fine or to imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• fraud;
• insider dealing; and
• breaches of the money laundering regulations.

Following formal investigation, the regulators have powers to impose sanctions and fines, and in certain cases, criminal penalties, including:

• insider dealing and misleading statements and practices;
• breaches of the Anti-Money Laundering Act 2014 (Lag (2014:307) om straff för penningtvättsbrott); and
• conducting regulated activities when not authorized.

Fines including daily fines until a violation is corrected and/or imprisonment are generally imposed to a natural person or company violating the regulations.

A director of the company may be subject to a fine or imprisonment if he or she orders or omits an action resulting in the company's violation. However, fines and other regulatory penalties are generally imposed provided that it is the company that violates the law. 

Formal investigation may result in criminal liability being imposed on a regulated entity and personnel in certain cases, including:

• insider dealing and manipulation, misleading statements and practices;
• violations of the money laundering regulations; and
• conducting regulated activities when not authorized.

Generally, the criminal liability may be punishable by:

• penalty which may vary from £415 (UAH 13,697) to £7,787 (UAH 257,006) depending on the breach;
• imprisonment for three to 15 years; and/or
• loss of regulatory status and right to occupy positions or engage in business activities for a term of up to three years.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of the Money Laundering Regulations; and
• conducting regulated activities when not authorized.

Following formal investigation, the regulators have powers to impose criminal penalties in certain cases, including:

• insider dealing and misleading statements and practices;
• breaches of the Money Laundering Regulations; and
• conducting regulated activities when not authorized.

There are many circumstances that can lead to criminal penalties for individuals involved in corporate wrongdoing and these have been expanded for directors under the new provisions of the Federal Commercial Companies Law, the Banking Law, the Bankruptcy Law and the Anti-Money Laundering Law.

There are criminal penalties for anyone that has been liable for transgressions under the Foreign Corrupt Practices Act; The UK Bribery Act; Dubai Financial Services Authority anti-money laundering and bribery regulations; as well as people engaged in business practices that may amount to violations of the UAE Penal Code Federal Law No. 3 of 1987. These go from fines to periods of imprisonment for the most serious offences.

Note that if a crime has been committed in either of the Financial Free Zones or Free Zones, the provisions of the UAE Penal Code will prevail.

The regulators may impose criminal penalties in certain cases, including:

• securities or commodities fraud (a fine, imprisonment of not more than 25 years, or both);
• money laundering (violations of 18 US Code section 1956 may involve a fine, imprisonment for not more than 20 years, or both and violations of 18 US Code section 1957 may involve a fine, imprisonment for not more than ten years, or both);
• economic sanctions (a fine, imprisonment of not more than 20 years, or both);
• mail and wire fraud (a fine or up to 20 years of imprisonment, or both and if the violation affects a financial institution, the fine may be up to USD1 million, imprisonment for not more than 30 years, or both);
• conspiracy (a fine, imprisonment for not more than five years, or both if charged under 18 US Code section 371, and a fine, imprisonment for not more than 20 years, or both, if charged with conspiring to commit mail or wire fraud under 18 US Code section 1349); and
• breaches of the Bank Secrecy Act (a fine, imprisonment for not more than five years, or both and willful violations may involve a fine, imprisonment for not more than ten years, or both).

For all of the above-mentioned charges, courts may also impose both forfeiture and restitution orders.