Legislative and Theoretical Aspects of the Money Laundering Contravention Foreseen by art. 23, paragraph 1, letter b form the Law No. 656/2002

• Author: Vasile Dobrinoiu; Florin Encescu
• Pages: 52-64

Vasile Dobrinoiu. Professor Ph.D., “Nicolae Titulescu” University, Bucharest (e-mail: vasile.dobrinoiu@univnt.ro).

Florin Encescu. Judge, vice-president of District Court of Gorj, Ph.D. candidate, “Nicolae Titulescu” University, Bucharest.

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Introduction

According to paragraph 1 of the art. 23 form the Law no.656, from 7th December 2002 for preventing and enforcing money laundering, as well as instituting measures for preventing and disproving the financing of terrorist¹ acts, constitute in the contravention of money laundering and it is punished with imprisonment from 3 to 12 years:

1. changing or transferring goods, knowing that they come form committing of contraventions, for the purpose crimes, in the purpose of hiding or the dissimulation of the illicit origin of these or in the purpose to help the person that committed the contravention form which the goods came, withdraw himself from the pursuit, trial or execution of the punishment.

2. hiding or dissimulating the true nature of the provenience, situation, disposition, circulation or property of goods or rights, knowing that the goods come form perpetrating contraventions.

3. getting, detaining or using goods, knowing that they come form perpetrating contraventions.

According to paragraph 2 of the same article, the attempt for this contravention is punishable.

I gave the whole text of the article that incriminates the deeds of money laundering to mark out from the beginning the differences between the alternative modalities of this contravention, but also the similarities between them, conclusive aspects to situate correctly juridical this type of deeds. And also because, joining consecrate authors is easy to observe that some of the notions of some or the terms are found in defining all of these modalities of contraventions, the context of their use being different, characterizing and personifying the contravention activities incriminated.

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And because our intercession is referring specially to the modality incriminated by the art.23, paragraph 1, letter (b) of the law, we have to observe that under the aspect of the material element of the contravention, hiding or dissimulating as actions is found also in the content of the modality regulated at letter a, in this last case being necessary that the action is headed for the purpose to help the person that committed the infraction form witch the goods came to withdraw form pursuit, trial or execution of the punishment.

Also, the modality form letter (b) and that regulated by the letter (c), condition the penal character of the deed by the fact of knowledge by the active subject of the circumstance that the good derive from committing contraventions.

Notions Terminology controversy

The contravention modality that we analyze, as much as the other two modalities, do not contain the notion of money expresis verbis, the legal test talking just about the notion of goods.

In art.2 paragraph (a) and (b) from the law it is shown that through the term money laundering it is intended the contravention foreseen in the art.23, through the notion of “goods” we understand the corporal or incorporeal goods, movable or unmovable, also the juridical documents or documents that attest a title or a right regarding these.

The same article, letter (c)² defines the notion of “suspicious transaction”, through this understanding the operation which, through her nature and unusual character relating with the activities of the client of one of the persons foreseen at the art.8³, arouses the suspicion of money laundering or financing terrorist acts.

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At the letter (d)⁴ is defined by the notion of “external transactions form and in the accounts” through this we intend payment operations and revenues made between persons found on the Romanian territory and persons outside the border.

Although they are not expressly enunciated in article 23’s text, notions like suspicious transactions and external transfers are contained in the notions more comprehensive of change, transfer, hiding, dissimulation, circulation of goods, defining the exterior form, perceptible of the criminal action, which hides the true nature and the real purpose of the operation.

From the tactical point of view, the establishment of the suspicious transactions by the subjects qualified by law, give birth to their obligation to notice, foreseen by article 3 from the law, according to which, as soon as the employee of an juridical person or one of the natural persons foreseen in the art.8 has suspicions that an operation that is to be effectuated has as a purpose money laundering of financing terrorist acts, will inform the person designated according to art 14, paragraph 1⁵, which will announce immediately the National Office of Preventing and Combating of Money Laundering. This will confirm the receivement pf the announcement.

The denomination “money laundering”⁶ was appreciated as inadequate⁷ in the specialty literature, claiming that these dispositions intend not only the money but any other goods come form committing contraventions. More adequate would have been, in the respective opinion the denomination “law for preventing and combating the laundering of contraventions products”.

The author of this opinion’s criticism, shows that maybe this denomination is not perfect, it’s understanding and interpretation must not be made ad litteram and in this way, limited the field of action of the law to only laundering the money that come form committing contraventions.

As an argument, these look like we anticipated, because, to oust any trace of doubt and ordeal to limit the sphere of incidence of it’s dispositions, the Law no.656/2002 through art.2 letter a) and b), defined the notion of money laundering and goods which, according to art.23 letter a), b) and c) can make the object of the action of laundering.

In the author’s opinion the denomination submitted “laundering the product of a contravention” is less justified than the one used and criticized, forasmuch it’s nature can restraint the field of action of the law at this category of goods and leave outside those gained by committing the contravention.

It is reminded in this way that they are the product of a contravention, those goods that are created by committing the deed- action or inaction- that constitute the material element of these (fake coins; fake credit titles; guns; fabricated explosion materials, etc.)⁸, through things gained by contravention understanding those that got into the hands of the author or of a participant, by committing this (stolen things, money obtained by bribery, blackmail, deceiving etc.)⁹.

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Not only the goods produced but also those gained by contravention, are part of the category of those gained by committing the contravention, the Law no.656/2002 having as an objective not only the produced ones but also those gained through it.

The categorical formulation of art.23 of the Law no. 656/2002 shows that through this it is incriminated only one contravention of money laundering, in more normative modalities and not more contraventions.

The author goes further, showing that not even the stipulation of art.17 letter e) from the Law no. 78/2000, which refers to contraventions of money laundering, foreseen by the Law no. 656/2002 for preventing and punishing money laundering, then when the goods come form committing a contravention or similarly to this, are not of nature to change the data of the problem, because, first of all, the first refers to the others, cannot create more contraventions than they contain, second of all, because the last, through art.23, incriminate, as we saw, only one contravention.

Alongside the author, we consider in our turn that this legislative un-correlation should be averted, eventually by instituting a clearly and differentially and more severe sanction treatment in the law for preventing and punishing money laundering, in the case when the goods come form committing a contravention of corruption or assimilated with this.

The object of the infraction

1. The juridical special object

The special juridical object of the contravention of money laundering foreseen and punished by art.23 from the Law no.656/2002, is constituted by those social relations which formation, existence and development cannot be conceived without the defense and the insurance of the legal circuit- financial, banks, commercial and civil- of money, values and goods, against the attempt of hiding or dissimulating the illicit origin of these, or favor characters involved in this type of activities or alleged that they get around the juridical consequences of their deeds¹⁰.

The infraction doesn’t have, in this first opinion, notwithstanding other sustains¹¹, the same juridical object as the infractions from which the money, values or goods that are submissive to the action of laundering, come.

In another opinion¹² the juridical object specific to the contravention of money laundering is a complex one, because it contains two categories of social relations, and those are: social relations regarding doing justice and those connected with the patrimony, referring to the licit judiciary circulation of the goods. The infraction of money laundering affects, therefore, not only the legal circuit of the goods, but also the doing of justice, because it hardens the activity of reestablishing the right order broken by committing the contraventions.

In these authors’s opinion, the deeds of money laundering hurts or puts in danger a...