Post by account_disabled on Mar 13, 2024 0:14:40 GMT -5
We return to the topic of which legal assets are protected by the Money Laundering Law. There are several positions in the doctrine that argue that the criminalization of laundering protects: a the administration of Justice; b the socioeconomic order; c both that is it is a multi-offensive crime. There are still minority sectors that argue that the criminalization of laundering protects the same legal asset protected by the previous criminal offense or even that seeks to combat organized crime.
Spacca
There are therefore divergent doctrinal and jurisprudential positions that support based on strong arguments that the criminalization of money laundering protects a certain legal good — a basic postulate indispensable to Criminal Law based on the function of guaranteeing the theory of legal good. The purpose of this work is for now CG Leads to argue that the protected legal good cannot be the administration of Justice. Initially for a simple reason: every crime in one way or another also affects the administration of Justice because it calls into question the discovery of the perpetrator of the crime when the agent adopts strategies aimed at guaranteeing his own impunity. This can range from a simple homicide to a complex crime against the national financial system. In any case the administration of Justice will also be threatened when the perpetrator of the crime or its material object cannot be identified.
In any case the legal interest protected by the administration of Justice with regard to the concealment or receipt of amounts of criminal origin would already be covered by the crime of receiving or real favoritism. Therefore there would be no need to protect the proper functioning of Justice through money laundering. The double punishment for the antecedent crime and the recycling crime could characterize a bis in idem that is a double punishment for the natural consequence of the criminal cycle.
On the other hand how can we justify that laundering may have a higher penalty than the previous offense that led to the offense against the administration of Justice? In many cases if the argument is to protect the proper functioning of Justice in relation to the previous crime it would not be justified for the laundering penalty to be higher than the crime that is avoided by hiding the values. And this ranges from a criminal misdemeanor to certain property crimes or crimes against the financial system. In these cases we would have a super penalization of the subsequent offense in relation to the protection of the preceding offense administration of Justice. In this sense when talking about the crime of concealment in the Spanish Penal Code the legislator expressly prohibits the penalty from exceeding that of the predicate offense article CP. The same should apply to the crime of money laundering although in Spanish legislation the prohibition is not valid for recycling but the minimum laundering penalties are lower than those in Brazil.
From a legislative or criminal policy perspective the reference to the criticism formulated by Faria Costa is interesting for whom “Creating a legal type of crime in order to in this way develop better or more easily in a legal manner any type of persecutory activity constitutes an unclear political-legislative attitude that moreover can have perverse effects” . The criticism reveals that the idea of creating a criminal type of laundering to reinforce the investigation because it would put the administration of Justice at stake by making it difficult to discover the origin of the crime puts Criminal Law itself at stake.
This does not mean that money laundering does not or cannot affect other values or assets worthy of legal protection for example the administration of Justice. On the contrary we admit that there is a set of interests possibly violated by this practice which is why it is easy to understand the position of some authors for whom money laundering is a crime that also affects the proper functioning of Justice. We do not however share this position because we understand that offense reflective to a plurality of interests is a natural element in most criminal figures — and in a good part of social conduct itself; as well as because with this position there is a weakening of the interpretative framework of the criminal type — based on the function of the legal good as a criterion limiting the scope of the type.
Spacca
There are therefore divergent doctrinal and jurisprudential positions that support based on strong arguments that the criminalization of money laundering protects a certain legal good — a basic postulate indispensable to Criminal Law based on the function of guaranteeing the theory of legal good. The purpose of this work is for now CG Leads to argue that the protected legal good cannot be the administration of Justice. Initially for a simple reason: every crime in one way or another also affects the administration of Justice because it calls into question the discovery of the perpetrator of the crime when the agent adopts strategies aimed at guaranteeing his own impunity. This can range from a simple homicide to a complex crime against the national financial system. In any case the administration of Justice will also be threatened when the perpetrator of the crime or its material object cannot be identified.
In any case the legal interest protected by the administration of Justice with regard to the concealment or receipt of amounts of criminal origin would already be covered by the crime of receiving or real favoritism. Therefore there would be no need to protect the proper functioning of Justice through money laundering. The double punishment for the antecedent crime and the recycling crime could characterize a bis in idem that is a double punishment for the natural consequence of the criminal cycle.
On the other hand how can we justify that laundering may have a higher penalty than the previous offense that led to the offense against the administration of Justice? In many cases if the argument is to protect the proper functioning of Justice in relation to the previous crime it would not be justified for the laundering penalty to be higher than the crime that is avoided by hiding the values. And this ranges from a criminal misdemeanor to certain property crimes or crimes against the financial system. In these cases we would have a super penalization of the subsequent offense in relation to the protection of the preceding offense administration of Justice. In this sense when talking about the crime of concealment in the Spanish Penal Code the legislator expressly prohibits the penalty from exceeding that of the predicate offense article CP. The same should apply to the crime of money laundering although in Spanish legislation the prohibition is not valid for recycling but the minimum laundering penalties are lower than those in Brazil.
From a legislative or criminal policy perspective the reference to the criticism formulated by Faria Costa is interesting for whom “Creating a legal type of crime in order to in this way develop better or more easily in a legal manner any type of persecutory activity constitutes an unclear political-legislative attitude that moreover can have perverse effects” . The criticism reveals that the idea of creating a criminal type of laundering to reinforce the investigation because it would put the administration of Justice at stake by making it difficult to discover the origin of the crime puts Criminal Law itself at stake.
This does not mean that money laundering does not or cannot affect other values or assets worthy of legal protection for example the administration of Justice. On the contrary we admit that there is a set of interests possibly violated by this practice which is why it is easy to understand the position of some authors for whom money laundering is a crime that also affects the proper functioning of Justice. We do not however share this position because we understand that offense reflective to a plurality of interests is a natural element in most criminal figures — and in a good part of social conduct itself; as well as because with this position there is a weakening of the interpretative framework of the criminal type — based on the function of the legal good as a criterion limiting the scope of the type.
