Controversy regarding the active subject of the infraction of money laundry

AuthorMihai Hotca; Silvia Niţu
Pages114-119

    This paper has been prepared within the research project „Standardization of Judicial Practice and Harmonization With the ECHR Jurisprudence, a Mandatory Condition to Enforce Justice. Legislative Proposal to Grant Aconsistent Judicial Practice” (ID-1094) financed by the Romanian Minister of Education, Research, Youth and Sports.

Mihai Hotca. Associate professor, Ph.D., Dean of the Law Faculty, „Nicolae Titulescu” University, Bucharest (e-mail: mihaihotca@gmail.com).

Silvia Niţu. Prosecutor, Ph.D. candidate, “Nicolae Titulescu” University, Bucharest.

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Introduction

In the Romanian criminal law, the infraction of money laundering, under this name, appeared in 1999, because the first regulation of the deed of money laundering took place by means of Law no. 21/1999. This law was repealed by Law no. 656/2002 for the prevention and sanction of money laundering. The circumstance matter of the persons that can be active subjects of the infraction of money laundering is topical and is unsolved unitarily either in the specialty theory or in the legal practice, not only in our law, but also in the law of other countries (for instance, German law, French law etc.).

The modern form of money laundering is attributed to the American gangster Al Capone, who, during 1920-1930, opened in USA laundries by means of which it was created the facade of legality of the funds obtained from committing the infraction2. In fact, the expression of „money laundering” was not „invented” by Al Capone or other offenders contemporary to him, but it was him, together with other gangsters, that developed the methods of money laundering in the context of the prohibition and the economic crisis through which the USA went through between the two world wars, period during which the outlaw gangs strewed the entire country over with laundries (dry cleaning laundries) that would offer beside the regular services, also services of cleaning laundry. Gangsters, such as the famous Al Capone or Bugsy Moran, opened laundries for „whitening the dirty money” by using a simple scheme: they would mix black money obtained from committing infractions (for instance, bootlegging), with the money obtained from the laundering (very little, because the population did not have money in the context of the crisis), and managed this way to introduce very large amounts of dirty money in the legal circuit3.

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The first use of the syntagm of “money laundering” took place in 1973 by the newspaper The Guardian during „Watergate” scandal in which the former American president Richard Nixon was involved4. After this scandal, the expression of “money laundering” started to be used on a greater scale and nowadays has come to be used on a worldwide scale.

The current status of integrating the worldwide financial system at the same time with optimizing the communication technologies, favoured the disappearance of some territorial barriers, so that the parties interested in carrying on some operations regarding the dirty money laundering got new tools, such as the fictive relocation of the registered office to off-shore area or using the Internet for banking transfers from the distance5.

Analysing the content of the legal norms that regulate the domain of preventing and sanctioning the money laundering, we find that the deeds of money laundering are not regulated correspondingly; one of the causes of this situation is that the states interested in the prevention and sanction of these deeds have different concepts and regulations regarding the content of the ”money laundering phenomenon”, including regarding the possibility of sanctioning the participant to the infraction from which the laundered assets come.

The specialty literature in Romania is divided with regard to solving the matter whether the participant to the main infraction can or can not be the active subject of the money laundering infraction. Although there are more studies that deal with this matter, we consider that, so far, not all the scientific arguments that allow the reader to opt for one of the two solutions, by having at disposal all the arguments have been expressed.

Presentation of the evolution of the Romanian legislation in terms of money laundering

Until 2002, when Law no. 656/2002 came into force, the deeds of money laundering were stipulated and sanctioned within art. 23 of Law no. 21/1999, according to which:

The infraction of money laundering is and is punished with imprisonment from 3 to 12 years:

  1. exchange or transfer of assets, knowing that these come from committing some infractions: drug traffic; failure to observe the regime of weapon and ammunitions in severe form; failure to observe the regime of nuclear material or other radioactive materials; failure to observe the regime of explosive materials; forgery of currency or other assets; whoremongering; smuggling; blackmail; illegal deprivation of freedom; fraud in the banking, financial or insurance domain; fraudulent bankruptcy; theft and concealment of cars; failure to observe the protection regime of some assets; traffic with animal protected by law in their country; traffic with human tissues and organs; infractions committed by means of computers; infractions committed with credit cards; infractions committed by persons that belong to associations of offenders; breaking the provisions regarding the import of waste and residues; breaking the provisions regarding the gambling; for the purpose of concealing or dissimulating their illegal origin as well as for the purpose of concealing and favouring the persons involved in such activities or presumed to elude from the legal consequences of their deeds;

  2. concealment or dissimulation of the real nature of the origin, appurtenance, provision, circulation of the ownership of the assets or of the right over them, knowing that these assets come from committing one of the infractions stipulated by letter a);

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  3. obtaining, possession and use of assets knowing that these assets come from committing one of the infractions stipulated by letter a).

    In 2002, Law no. 21/1999 was repealed by Law no. 656/2002 because it was considered that it did not satisfy the real needs of preventing and sanctioning the deeds of money laundering and the exigencies of the European Union in this domain.

    In 2004, through Law no. 301/2004, it was repealed a new Criminal code that contains incrimination norms similar to those in Law no. 656/20026. This Criminal code hasn’t come yet into force, because it has not been repealed also a Code of criminal procedure corresponding to the new legal provisions. As for us, we think that this one will never come into force because a new Criminal code bill is registered with the Parliament of Romania, substantially different from the other one, together with the bill of Code of criminal procedure.

    As for Law no. 656/2002, this brought substantial modification to the legal definition of the infraction of money laundering existing in Law no. 21/1999...

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