Ph.D. Marchuk R.

The National Academy of Public Administration, the President of Ukraine

Financial monitoring realization: theoretical, legal and practical issues

 

To carry out the business activity properly depends on a number of factors. The skillful management, the knowledge of the normative-lawful basis of entrepreneurship, the practical entourage perception, and the active response to the changes are among them. However, on conditions of unprotected business the mentioned positive qualities are leveled. Financial monitoring is one of the urgent directions of business protection.

The constant financial services control to reveal money laundering (legalization) of proceeds from crime is the main task of financial monitoring.

At first glance, money laundering is a crime without a victim. The tenseness of murder, rape, robbery, and any other horror which leaves in the human mind the heavy infraction of the law are not associated with this crime.

But the fact is that money laundering always occurs after serious crimes such as robbery, house-breaking, drug and human traffic etc. It is necessary to remember that legalized «dirty» proceeds are directed to financing new crimes, particularly, terrorist activity.

Most people are not informed of laundering crime proceeds, and this factor makes the problem to look like invisible, therefore it is so hard to combat it.

First of all urgent actions in this area must be the enlightenment activity which explain to people the real danger of money laundering.

Certainly, the problem of business safety and financial monitoring realization requires the scientific approach to its solution. For this very reason the important role to solve this problem must belong to its discussion on the conferences, the symposia, the round tables, the seminars and other forms of scientific meeting.

The expression «money laundering» was first used by the newspapers during the Watergate scandal of 1973, and for the first time in the juridical and legislative context it appeared in the USA in 1982. Since then it is used in the entire world.

As penal action, money laundering drew attention in the 80th of ÕÕ century, mainly concerning the drug smuggling.

The governments of the western countries had to recognize that the criminal organizations and their enormous profits form drug trafficking business could essentially corrupt the state structures of all levels. It was decided to create the proper legislative basis to combat this socially dangerous action.

Today, laundering criminal property became the global issue. Every year in the world money of more than 500 billion US dollars is laundered.

Money laundering is a process where a great amount of legalized crime proceeds is presented as it has a true source of origin.

At the end of 60th the first step to counteract this phenomenon became the recognition by the Congress of the USA of the fact that cash was the important source for organized crime. Therefore, in 1970 it was passed the Bank Secrecy Act which intensified combating laundering of proceeds from crime.

Having analyzed the current anti-legalization legislation of some countries it is possible to mark out that collaboration of bank and nonbank institutions with law-enforcement authorities is the general aspect of combating this crime. Such collaboration supposes that the employees of financial-credit institutions should detect suspicious agreements and inform the competent authorities.

 In 1995 in the USA the program «Know Your Customer» was presented. It originated from the Bank Secrecy Act. This program requires identifying its customers and their activity to protect the financial institutions from possibility to become the channel of money laundering.

In 1993 Law of Germany «On Identification of Profits from Serious Crimes» (in fact, anti-money laundering act) was passed. The law concerns the structures which ensure legality of cash flow: credit and financial institutions, insurance companies, post-offices and some private persons (for example, lawyers and notaries).

In 1998 in Switzerland Anti- Money Laundering Act came into force. It stipulates for bank and financial intermediaries control increase, at that it is carried out not only by the national authority but the various professional organizations. According to the Swiss legislation any depositor or entrepreneur can be under suspicion, because the law does not contain the level of suspicious sum.

Most developed countries founded the legislative basis for prosecution of the individuals guilty of crime proceeds laundering, elaborated the system of measures for crime proceeds seizure, there are regulated the methods of combating money laundering, the mechanism of cooperation among national law enforcement and supervising authorities, and proper demands to limit bank and commercial secrecy.

The system of counteraction money laundering is based on the following basic principles:

– The established amount of currency transaction, exceeding of which all transactions are to be registered by a bank (or any other financial institution) with the purpose of further check;

– There are elaborated and used the list of signs which determine whether the currency transaction is related to those that are carried out to launder money;

– Responsibility of bank or financial institutions employees to inform law enforcement and supervising authorities;

– One of the executive bodies is authorized to coordinate the activity of all law enforcement and supervising authorities in the area of combating money laundering.

Thus, the problem of crime proceeds legalization has general nature and is connected with the dangerous social phenomena like organized crime, international terrorism etc. Besides, the globalization of processes in the world economy increases amount of crimes of transnational scale. That is why combating these malignant manifestations of the modern world is so important.

Each country has its legislative basis for combating legalization of illegal proceeds. It is now in Ukraine. In accordance with FATF recommendations Law of Ukraine «On Prevention and Counteraction of Legalization (Laundering) of Proceeds from Crime» was passed on November 11, 2002, the normative-legal acts corresponding to this law were adopted, and the international agreements, conventions, and directives were ratified by Ukraine.

Financial monitoring must be carried out on the basis of the existent normative-legal base. The finance analysis of a company is placed at the heart of financial monitoring.

The current documentation of an enterprise is studied with the finance analysis of an object. In the course of this process the dynamics of financial indices during the accounting period is investigated. In case of need the dynamics of financial indices for several adjacent accounting periods is studied.

It must be noted that while conducting the financial transaction through the bank, managers of enterprises try to avoid giving such financial reporting. In some cases, this reporting contains only formal information. It is necessary to remember that entities related to money laundering are, as a rule, extremely mobile, established for a short period of time with the help of false documents or a man of straw.

From the above-stated we can conclude that, although the analysis of indices of a financial condition of the enterprise should be used with the complex activity analysis of a company, to apply it in all cases is inexpedient.

Thus, we need the procedure that would allow to detect enterprises which activity will be investigated more carefully for the purpose of revealing money laundering operations, on the basis of the analysis of movement of funds on bank accounts of clients. This procedure must meet the following requirements: simplicity, reliability, the possibility of automation, exclusion of human factor, and flexibility. On the basis of these methods it is necessary to elaborate the system which will trace the client’s activity automatically. Under the set conditions this system should automatically inform of the necessity of the detailed analysis of transactions on accounts or the entity’s activity on the whole.

Being guided by the experience of international organizations and the recommendations of local authorities it is possible to trace the connection between the stages of legalization and the client’s activity. It will not only make possible to render more valuable information while monitoring, but also substantially increase the efficiency of the system of combating crime.