Rethinking Money Laundering & Financing of Terrorism in International Law

Transcription

1 SUB Hamburg A/ Rethinking Money Laundering & Financing of Terrorism in International Law Towards a New Global Legal Order By Roberto Durrieu M A R T I N U S NIJHOFF PUBLISHERS LEIDEN BOSTON 2013

2 CONTENTS Acknowledgments xi Foreword xv Note About Formatting xvii List of Abbreviations xix Table of Cases xxi Table of Legislation A xxvii Introduction 1 PARTI THE MAIN EXTRA-LEGAL AND LEGAL ASPECTS CONCERNING MONEY LAUNDERING & FINANCING OF TERRORISM Chapter I: The Main Extra-Legal Factors Overview What Is 'Money Laundering"? How Does Money Laundering Operate? Why Do Criminals Choose Money Laundering? Understanding the Stages of a Money Laundering Process The Internationalization of Money Laundering Operations A Mutable and Changeable Process A White Collar Crime A Modern Offence Quantum Evaluating the Causes and Effects of Money Laundering Why Are Some Markets/Territories More Attractive Than Others to Submit Criminal Assets for Laundering? 49

3 I Vi CONTENTS 5. Money Laundering and Its Nexus with the Financing of Terrorism The Link or Nexus between "Money Laundering" and "Money Dirtying" Operations 72 Chapter II: Architecture of the International Legal Order against Money Laundering & Financing of Terrorism Overview Reasons for Taking Legal Actions against Money Laundering & Financing of Terrorism Why Prohibit Money Laundering? Why Prohibit 'Financing of Terrorism'? Evolution of the International Legal Order against the Criminal Finance The Origins of Money Laundering Law International Conventions and EU Directives (Hard Law Instruments): Drug Trafficking, Organized Crime, Terrorism and, Finally, Corruption First Phase: Internationalization of Drug-Money Laundering Offences Second Phase: Internationalization of the Anti-ML Legal Order for Countering Organized Crime Third Phase: After the 9/11 Attacks, the Anti-ML Legal Order Was Expanded to Include the Financing of Terrorism Fourth Phase: Internationalization of Anti-Money Laundering Norms to Control Public Corruption International Recommendations, Model Laws and Resolutions (Soft Law Instruments) Examining the Evolution of the Global Legal Order in Hard Law Instruments The Main Goal: To Harmonize and Integrate the Global Legal Order against Money Laundering Understanding the Relevance in the Harmonization of Anti-Money Laundering Norms in the Sphere of 'Hard' International Law Some Inconsistencies and Problems in the Harmonization Process: A Way Forward Final Comments The Preventive-Regulatory Approach: Providing a Definition and Analysis of the International 'Anti-Money Laundering/Countering Financing of Terrorism' (AML-CFT) System General Overview and Definition of the Regulatory AML-CFT System 151

4 CONTENTS Vii 5.2. The New AML-CFT Regulatory System and the Right to Privacy The Punitive Approach: The Transnational Crime of ML Towards a 'Core' International Crime of Money Laundering? The (Too Ambiguous) Crime of Money Laundering as Drafted in Hard Law Instruments Reasons for Adopting a New, Less Ambiguous and Better Structured Definition of the Treaty Crime of ML The Condition of'dual Criminality' in the Context of International Cooperation between Countries 179 PART II A RIGHTS-BASED ANALYSIS OF MONEY LAUNDERING OFFENCES: A GLOBAL COMPARATIVE PERSPECTIVE Chapter III: Analysis of the Social Values Protected by Money Laundering Offences Overview Preliminary Comments: The Criminalization Process and the Principle of ultima ratio of Criminal Law The Crime of Money Laundering: A 'uni-offensive' Crime, a'multi-offensive'crime or Neither? Money Laundering as a Natural Consequence or a sine qua non Condition of the Predicate Offence The Administration of Justice as the Main Social Value The Socio-Economic and Financial System as the Main Social Value Stability, Sovereignty and Security of States as the Main Social Value Towards an Autonomous and Multi-Offensive Crime of Money Laundering? Some Final Thoughts: The Right Way Forward 232 Chapter IV: The Physical Element or actus reus of Money Laundering Overview The Actions of Laundering Conversion or Transfer of Proceeds of Crime and the Ulterior Intent to Conceal These Proceeds Concealment or Disguise of Proceeds of Crime Acquisition, Possession or Use of Proceeds of Crime The Criminalized Acts of Laundering in Light of the 'Harm' of Money Laundering: The Right Way Forward 262

5 viii CONTENTS 3. Examining the Word 'Property' That Represents the 'Proceeds of Crime' Discussing the General Features of the Word 'Property': A Global Comparative Perspective The Problem of 'Originated' or 'Surrogated' Proceeds of Crime and the so-called 'Chain ML Process' Key Aspects Related to the Predicate Offence of Money Laundering Defining the Scope of the Predicate Offence A Global Comparative Analysis of the Legislative Models to Define Predicate Offences Inconsistencies in Defining the Scope of Predicate Offences and the Condition of Dual Criminality Towards an All-Crimes Approach to Define Predicate Offences, but Including a Quantitative Limitation Clause and Penalizing 'Smurfing* Conducts as Well Some Final Thoughts Tax Fraud as a Predicate Offence of Money Laundering A Prior or Simultaneous Conviction for the Predicate Offence as a Prerequisite for a Conviction of ML? Analysis of Different Alternatives Evaluating the Levels of Evidence to Prove the Existence of a Predicate Offence Establishing the Existence of a Predicate Offence versus the Right to be Presumed Innocent (The Non-Reversal of the Burden of Proof) Circumstantial Evidence and Its Relevance to Prove the Existence of a Predicate Offence A Debate: Administrative or Civil Offences as Predicate Offences of Money Laundering Offences? A Final Debate: The Transferring, Laundering or Handling of Legal Funds with the Intent to Promote the Carrying On of Criminal Activities as a Criminal Offence 331 Chapter V: The Mental or Subjective Element of Money Laundering 33g 1. Overview Defining the Levels of Mind and the Degrees of Negligence in Common and Civil Law Systems The Intentional Crime of ML: Analysis of both dolus directus/actual Knowledge and dolus eventualis/recklessness Levels of mens rea Knowledge That the Property Involved Represents the Proceeds of Crime 346

6 CONTENTS ix 3.2. Knowledge of the Circumstances and Consequences of the Acts of Laundering An Ulterior and Specific Intent to Conceal or Disguise the Proceeds Mistake of Fact in the Crime of Money Laundering Proof of Knowledge and Ulterior (Specific) Intent Is There a Place for a Negligent ML Offence? Arguments in Favor of Only Penalizing Intentional Crimes of ML Conclusion 370 Chapter VI: Should the ML Offence Apply to the Person Who Committed the Predicate Offence? Overview A Global Comparative Perspective Arguments in Favor and against the Adoption of a ML Offence That Does Not Apply to the Person(s) Who Committed the Predicate Offence The Non-Punishment of Self-Launderers Could Generate Impunity Concluding Comments: The Supremacy of the Autonomous Approach 390 PART III JURISDICTIONAL PROBLEMS OVER MONEY LAUNDERING OFFENCES Chapter VII: Establishing Jurisdiction over Money Laundering Overview The Various Forms of Jurisdiction over Money Laundering Offences Defining the Various Forms of Jurisdiction An Internationa] Comparative Analysis The Condition of Dual Criminality in the Context of Predicate Offences Perpetrated in a Foreign Country or Territory The Inclusion of Extra-Territorial Jurisdiction over ML Offences at the Domestic Level Introduction The Spanish Case Study: Universal Jurisdiction over ML Offences (Article 301 (4) of the Spanish Penal Code) The United States Case Study: The Leading Case 'Pasquantino et al. v. the US' Some Final Thoughts 415

7 X CONTENTS 5. The Crime of Money Laundering within the Jurisdiction of a Specialized International Penal Court Introduction How Is the International Criminal Court (ICC) Organized? The Crime of Money Laundering as a 'Serious' and 'Transnational' Offence That Concerns the International Community National v. International Jurisdiction for the Prosecution of Serious and Transnational ML Offences Examples to Include Serious and Transnational ML Offences before the International Judiciary 426 Conclusions and Policy Implications Conclusions Part I Conclusions Part II Conclusions Part III General Conclusions: A Way Forward 444 Appendix I: Relevant Money Laundering Cases 449 Selected Bibliography 455 Index 467