A.
Mussin, LL.M.
Financial police Academy, Kazakhstan
Comparative analysis of anti-money
laundering legislation in different countries.
For
any of the states in the modern world, regardless of the level of its
socio-economic and legal systems, the penetration of the national economy
legalization of criminal capitals leads to the establishment of control over
certain sectors of the economy by criminal organizations, the spread of
corruption, drugs and criminal methods of competition, the reorientation of the
economic actors in the interests of criminal organizations, and as a result - a
significant deformation of the economic system as a whole.
Currently,
among scholars and practitioners disagree about the future directions and
opportunities for an effective system to counter this criminal phenomenon.
Types and forms of modern organized crime are extremely diverse, many of its
manifestations negative or criminal nature can not be put in a specific
offense, defined as a criminal and tort reach a common criminal law's
definition. Money laundering is a serious threat to all countries of the world
community, as this phenomenon to some extent has an impact on the crime
situation and the national economy.
The
legalization of criminal incomes and their penetration into the legitimate
economy in the past decade are widespread in many countries around the world,
gaining international, transnational in nature.
Money
Laundering process is danger because of the possibility of using criminal
incomes in illegal activities, and especially organized crime, having a
negative influence or capture the actual economic and political power in the
country and get on this basis, options for managing key areas of public life,
which is serious threat to economic security.
August
24, 2009 Presidential Decree approved the Concept of Legal Policy of the
Republic of Kazakhstan for the period from 2010 to 2020. Much attention is paid
to the concept of the need to improve financial controls, the adoption of
international experience, regulations governing the monitoring of financial
transactions in order to counteract legalization of proceeds from crime.
Money
laundering or other property acquired illegally - a crime in which the direct
object of the crime - public relations in the redistribution of wealth. The
subject of crime - property knowingly acquired by unlawful means, ie the
property that the offender possessed without the necessary (legal) to the base,
that is by committing a crime (eg fraud). Illegality should be to obtain property
by violations of the criminal law is, not civil law, because otherwise the
phenomenon is not socially dangerous. The crime may be committed in the form of
transactions to making ownership, use and disposal of specified funds or other
assets - is committing an act aimed at the establishment, modification or
termination of civil rights and obligations [1].
One
of the most common and easiest ways to "launder" money, the
acquisition of movable and immovable property. Thus, the money obtained by
criminal means, do not only jewelry, jewelry, cars, apartments, houses are
being built, but are bought and entire factories, businesses, service
providers, working in different spheres of business, etc. And as a rule, the
said property is recorded in the property not the owner, whether public
official or senior manager of a private company, and his close people,
relatives, most often a spouse. It should be noted that a predicate to the
question of a criminal case under article 193 of the Criminal Code may be a number
of economic and corruption crimes, regardless of the offense, if there is
reason to believe that in the commission of a crime or several crimes, the
person has acquired a most certainly illegal property or money. Then there is
the difficulty, if necessary confiscation of property acquired unlawfully
knowingly. At present, more and more popular among lawyers discussed the idea
of forfeiture in rem. In international practice, it is applied in cases where
it is impossible to corrupt any reason to prosecute (for example, he
disappeared), but there is clear evidence that his property (which is nowhere
in this case not gone - and so is) acquired on proceeds of corruption.
Confiscation in rem can seize property if its value does not correspond to a
legitimate income persons. In turn, suspected of bribery must independently
prove the legality of the acquisition of property.
Some
Russian scientists say about the necessity of introducing the Criminal Code of
the concept of in rem forfeiture if the owner can not prove the legal origin of
the property. They believe that the burden of proof could be given to persons
found guilty of committing a crime, if entered into force on conviction by a
court and objective information to believe that a particular property owned by the
person responsible was obtained by criminal means. Currently this document is
prepared for the meeting at the Parlament of the Russian Federation. Discuss
the introduction of such an institution is proposed in the recommendations of
Greco (Group of States against Corruption, Russia entered into its composition,
to sign and ratify the Council of Europe Criminal Law Convention on
Corruption). This is one of the most controversial recommendations, consensus
yet.
In
Italy, the confiscation acts of the 1980s. and enabled an active attack on the
property mafia. In Norway, an institution of the "extended
confiscation": all property seized the offender, if he fails to prove the
legitimacy of its origin, property, and even his wife, the former or current.
In the U.S., similarly punishable by more than half of crimes, if there is
evidence that the property was obtained during the commission of the offense
and the legitimate sources of its receipt no [2].
The most common notion of forfeiture is the following - it is
mandatory uncompensated seizure of state ownership of all or part of property
owned by a citizen, or rather seizure - this exemption to state ownership of
property acquired as a result of the crime and items used to commit a crime.
From time immemorial, human justice is reduced to the indemnity for damages and
to the satisfaction of revenge. In the ordinary criminal law of our ancestors
of the Kazakhs is almost the only punishment for any act, starting with the
assassination and ending with the most insignificant act, is fine.
In
our opinion, a worthy alternative to rebirth on a new foundation that was
before the Russian imperial law, and that still remains in many civilizations
of our world - a reversionary interest, ie well-forgotten old customary law of
the Kazakhs. To implement onerous (return) of the principle is already a lot of
elements in the legislation and made a lot more: there is the concept of damage
is the demand for his recovery, there are some rules on how and what to
evaluate and compensate anyone. By the way, the question of damages is closely
adjacent to the already long ago raised the problem of choosing non-custodial
sentence. Indeed, under current conditions in the application of criminal
penalties and, above all, the deprivation of liberty has not fared crime
situation, which has a negative impact on the fight against crime. In
international criminal statistics there are several criteria that assess the
nature of the judicial system: punitive or soft. One of them - the percentage of
imprisonment in the structures of all kinds of punishments. Experts stating
that 22% - is the average European level. For comparison, if the proportion of
prison in 1998 was 45.3%, and then in 2010 it exceeded 40%. It follows that in
the years that operates the Criminal Code in 1997 the proportion of
imprisonment in the overall structure of the penal system remained stable, with
slight differences [3].
Despite
the simplicity and consistency of such a method as in rem, to this legal
institution requires a balanced and comprehensive approach. On the one hand the
theory of such confiscation seems to be very accurate. For example, suppose
arrested for taking bribe a public official, and his declarations stated one
thing, but actually it "hang" yachts, villas, etc., in such cases it
is necessary to confiscate all things, whose origin he did not can reasonably
explain.
prove a suspect in corruption, that all this wealth bequeathed
to him formally, consider lucky. If such officer or days not worked in the
business, but somehow amassed a weighty state, having fallen by even a small
bribe, he loses, in fact, if not all, very, very much. But there is important
work fine effect, the presence of compelling evidence that the observed
property does not fit with legitimate income. Of course, there should be
judicial decision.
It
seems fully justified the possibility of in rem in Kazakhstan, but it should be
noted that this method of dealing with corrupt works well in countries where
bribery is a system level is reduced to individual cases. This should function
normally law-enforcement and judicial system, when the society is not the
slightest doubt as to impartiality investigative and judicial process.
The
penalty of forfeiture is directed primarily against major looting people's
property, state and public property against malicious corruption, nazhivshih
enormous wealth through bribery, embezzlement and other lucrative crime, as
well as major drug traffickers [4].
References:
1. New Dictionary of Law A.
Azriliyan. - Moscow: Institute for New Economy, 2006.
2. http://market7788.ru/digest/2597-digest-of-the-newspaper-vedomosti-on-june-3-2010.html
3. Moldabayev S.S. newspaper
"Legal Reform" of February 7, 2011 ¹ 3 p. 2
4. B.Karaganov. Place of a fine in
the system of punishment in the Criminal Code. / / Criminal law #4 of 2003 p.
33-35.