24 de Septiembre del 2018
OFFENSES AGAINST PUBLIC ADMINISTRATION AS A CRIMES LEADING TO MONEY LAUNDERING
By María Gabriela Coronado Díaz - Partner LatamLex Guatemala
The range of offenses that can give rise to the crime of money laundering is extensive. By virtue, it is appropriate to ask oneself in particular if the sum of these, or those offenses, can become crimes leading to money laundering.
Amongst crimes against public administration, the Penal Code, Decree Number 17-73of the Congress of the Republic of Guatemala has made 5 classifications:
- Those committed by individuals against the public administration.
- Those committed by officials or employees.
- Bribery offences.
- Misappropriation and embezzlement.
- Illicit negotiations.
Of all these classifications, those most demonstrative of this article are those which are committed by officials and public employees, which, as can be observed are all but the first. In other words, the subject of money laundering, when it comes from an illicit activity, is an official or public employee.
Once an official commits a crime that produces illicit gains in his favor, a sum of money, which ever it may be, he finds himself in need of establishing a means by which to spend it without brining attention to its illegal provenance. As the author of the first crime “launders,” that is to say gives a legal appearance to these funds within their patrimony, he is committing a second crime: money laundering.
Amongst these, the most notable are offenses in which the funds are produced in an illicit manner. The violation of seals or fraudulent acts are not become connected with the need to launder money or assets. Therefore, offenses against public administration which can be considered prior crimes to money laundering are those in which deal in cash spoils or any other object of value be it property or assets. For example, the official or public employee who intentionally solicits or accepts directly or indirectly any object of pecuniary value or other benefit, as a favor, handout or present, promise, or advantage, for himself or other person, in exchange of said official or public employee performs or omits any act in the exercise of their public functions, what he is doing is committing passive bribery. This official will have to launder the funds so that its origin within their own patrimony appears legitimate.
When there is concurrence with other crimes or offenses, in as much as the gift or present requested, received, offered or promised, had as an object the realization of an act that constitutes an offense, then a concurrence of legal crimes are generated being that they are already contained in the law, in this case Article 440 of the Penal Code, Decree Number 17,73 of the Congress of the Republic of Guatemala.
When the official or public employee takes or consents for another to take money or treasury bills that he has at his disposal by means of his position, he is committing bribery, as contained in Article 445 of the body of laws previously mentioned. Bribery is another illicit form in which the official can make illegitimate gains which he will later need to launder.
The object of launderer is to get rid of the large sums generated by the precedent criminal act. In order to obtain this objective, the launderer must previously study the financial system in order to distinguish the intermediary financial agencies which are most flexible regarding the control of the operations realized by their clients, to then deposit these illicit funds and obtain payment instruments such as checkbooks, credit cards, cashier’s checks, etc. At this stage, due to the high level of risk of detection, the employee of many persons is needed and the concurrent operation of numerous functions which multiplies the risk. Once this phase is past, when the money has been placed in the financial circuit and shell companies come into play, banking collusion and other resources for masking or integration, the material evidence and accounting traces begin to disappear and it becomes almost impossible to establish a link between the funds and their illicit origins, making it difficult to detect laundering at this stage.
Crimes prior to money laundering
Anti-Laundering legislation in Guatemala needs clarity in regards to the coverage of gains originating from several crimes. Even though many times the specific illegal activity citing certain activities cannot be known or does not exist, the compliance officials must be attentive to the signs. This occurs especially in crimes against the public administration already exposed. In many countries, for each concrete legislation the red flags are discussed generally and aside.
It is important to evaluate if it is necessary, and by means of which probative procedure, to prove the commission of crime in order to corroborate the commission of the crime of money laundering, or if, by consequence of the concept of autonomy of the crime of money laundering it is possible to sustain that the crime is independent of the predicative crime. Prior to money laundering there is a crime that generates these resources and not necessarily are these crimes committed by the same person. An aspect which distinguishes money laundering from other penal crimes, is the fact that it is not consumed or committed in an instant, but rather takes place in stages.
The Vienna Convention of 1988, which was a pioneer in the international initiatives in the matter of money laundering originating from drug trafficking, sets forth the typical behaviors and illicit acts considering the reality of and comprising the entire process of money laundering. Other international agreements that recommend the classification of money laundering originating from other illicit acts of drug trafficking, such as the United Nations Convention against Transnational Organized Crime and Corruption follow in like manner the formula used in the Vienna Convention of 1988. Similarly, the stages identified by the prestigious and influential Financial Action Task Force (FATF), which intervene in the process of money laundering originating from illicit activities are the following: placement, masking, and integration.