Criminal Cassation Plenary Sessions
Criminal Cassation Plenary Sessions
Date: 25/10/2017
In order to easily analyze the Plenary Sentence we can divide it into the three criteria that were the subject of the pronouncement regarding the crime of money laundering; the autonomy of the crime of money laundering, the criterion of the seriousness of the crime in relation to what is regulated by Article 10 of Legislative Decree No. 1106 and the standard of proof of criminal activity that generates illegal profits.
1. Regarding the autonomy of the crime:
The Supreme Court determines that Article 10 of Legislative Decree 1106 is not a criminal type or a complementary criminal type that regulates any numerus clausus or open, closed, mixed or exclusive or necessary list of previous crimes. With this, it makes clear that the crime of money laundering is autonomous and that for its investigation, prosecution and sanction it does not require that the previous criminal activities have been subject to proof and conviction.
The Criminal Chamber of the Supreme Court determines that in order to judicially admit an accusation of money laundering and enable its prosecution, it will only be necessary that it complies with the following requirements:
Adequate identification of an unusual or suspicious operation or transaction, as well as an abnormal and unjustified increase in assets.
The assignment of such facts or economic conditions to at least one of the conducts representative of the crime of Money Laundering.
The pointing out of contingent indications or relevant warning signs, which allow knowledge or reasoned inference to be imputed to the author or participant regarding the potential illicit origin of the assets which are the object of the attributed conduct.
2. The notion of seriousness and the regulatory provision of Article 10 of Legislative Decree 1106:
The limitation generated by cassation 92-2017 Arequipa (which rejected the consideration of the crime of fraud in the administration of legal persons as a source of money laundering because it does not carry a penalty of more than four years and therefore is not punitive) requiring a condition of criminal seriousness, based only on the maximum limit of the penalty imposed, constitutes a negative teleological reduction and is contrary to the principle of legality. The Criminal Chamber of the Supreme Court determines that this criterion should not be applied because there are crimes in the Criminal Code with a penalty not exceeding four years but which nevertheless have the capacity to generate illicit assets (illegal appropriation, fraudulent administration, fraudulent insolvency, etc.).
3. Standard of proof of criminal activity that generates illegal profits – Legal requirements according to procedural stages.
The Criminal Chamber of the Supreme Court establishes that for the conviction of the crime of money laundering, as for any other, it is required the conviction beyond all reasonable doubt, based on objective and rational parameters, that each and every element of the crime is present:
(i) A previous criminal activity suitable to generate assets (no full proof of a specific criminal offence is required).
(ii) The commission of acts of conversion and transfer, or acts of concealment and possession, or acts of transport, transfer, entry into or exit from national territory; and
(iii) subjectively, both direct knowledge or presumed knowledge of the illicit origin of the asset – direct or eventual – (without this knowledge being precise or detailed in all its details).
Finally, the Criminal Chamber of the Supreme Court establishes a standard of proof necessary for the initiation or establishment of procedural stages and precautionary measures, taking as a principle the level of suspicion of the criminal act under investigation:
First, only simple initial suspicion is required for the issuance of the Disposition of Preliminary Diligence.
Second, for the issuance of the Preliminary Investigation Order, revealing suspicion is required, that is “revealing evidence of the existence of an offence, that the criminal action has not been time-barred, that the accused has been identified and that if this were the case, the procedural requirements have been met
Thirdly, sufficient suspicion is required for the formulation of the charge and the issuing of the indictment.
Fourthly, in order to order preventative detention, serious suspicion is required, that is to say, well-founded and serious elements of conviction in order to reasonably estimate the commission of a crime which links the accused as the perpetrator or participates in it.
Comments:
The plenary session ends by resolving the doubts regarding the autonomy of the crime of money laundering by making it clear that Article 10 is not part of the criminal type of money laundering, and cannot be considered a list of closed crimes that can only generate the maculated assets. Likewise, it leaves the erroneous criterion taken by the Cassation 92-2017- Arequipa regarding the severity of the necessary penalty in the source crime to be able to prosecute a money laundering crime. The Legislative Decree does not set out any standards and therefore the interpretation made is contrary to the law. The logic leads us to conclude (as well as the Supreme Court) that what is important in the source crime is that it has the capacity to generate assets.
Finally, an important criterion has been determined by the Plenary when analyzing the standard of the suspicion of the crime in relation to the procedural stages, being now necessary to comply and monitor that each procedural stage meets the standards set by this plenary.
