Baydeldinova T.A.
PhD doctoral student
of customs, fiscal and
environmental chair of law faculty
Al - Farabi Kazakh National University
Compliance monitoring as one of the most effective
instruments of state financial monitoring.
This article is devoted to the justification of building
compliance monitoring, coupled with the state financial monitoring system.
The paper put the
task to consider the national counteraction to legalization of illegally
obtained income system, and the place which it occupies the State Financial
Monitoring Service, as well as compliance monitoring system aimed at countering
legalization of proceeds from crime; consider the system of financial incentive
to the formation of the organization of compliance control.
The term
"financial monitoring" in relation to the creation of a national
system of combating money laundering and financing of terrorism has been
extended with the formation in 2008 of the Committee on financial monitoring on
the basis of the decision of the Government of the Republic of Kazakhstan from
April 24, 2008 ¹387 - within the Ministry of Finance of the Republic of
Kazakhstan.
Under the
financial monitoring is commonly understood as a set of state actions aimed at
preventing the legalization of proceeds from crime and financing of terrorism,
both in individual economic entities, as well as across the country and abroad.
According to Art. 1 of the Law of the Republic of Kazakhstan dated August 28,
2009 ¹ 191-IV «financial monitoring - a set of measures for the collection,
processing, analysis and use of data and information on operations with money
and (or) other property, carried out by the authorized body and subject to
financial monitoring in accordance with this Act "; The main directions
for the implementation of financial monitoring activities are: prevention of
legalization of proceeds from crime; organization of activities to combat the
laundering of "dirty" money and terrorist financing; international
cooperation in this area [1].
Position of
the Committee on Financial Supervision in the national system of counteraction
to legalization of proceeds from crime and terrorist financing. The national
system of counteraction to legalization (laundering) of proceeds from crime and
financing of terrorism (hereinafter AML / CFT) is constructed in accordance
with the Law of RK "On counteraction to legalization (laundering) of
proceeds from crime and terrorist financing", which defines the legal
counteraction to legalization bases (laundering) of proceeds from crime and
terrorist financing, the legal relations subjects of financial monitoring, the
authorized body and other state bodies of the Republic of Kazakhstan in the
sphere of counteraction to legalization (laundering) of proceeds from crime and
terrorist financing, and taking into account the recommendations international
organizations in this field.
In organizational terms, the National AML /
CFT system is a collection of executive authorities, other government agencies
and organizations engaged in AML / CFT, the powers that these authorities and
organizations have to implement their assigned functions and regulatory legal
acts of the Republic of Kazakhstan, regulating their activity. In the Address
of the President of the Republic of Kazakhstan - Leader of the Nation People of
Kazakhstan "Strategy" Kazakhstan-2050 ": a new policy
established state" one of the priority tasks defined by opposition to all
forms and manifestations of radicalism, extremism and terrorism. [2]
National Sistem of AML / CFT is designed to ensure implementation of a
unified state policy in this area is an important component of the strategy to
combat terrorism and crime, and is aimed, inter alia, on national security and
the protection of the economic interests of the Republic of Kazakhstan. This
system consists of two main blocks - law enforcement unit and financial
monitoring, differ in their subect composition, peculiarities of legal regulation and
solved problems.
Subjects of law
enforcement unit are law enforcement agencies, whose competence includes
detection, suppression and investigation of these crimes, the judicial
authorities, which give a legal assessment of the crime and prosecutors
overseeing the rule of law. Relationships in the national AML / CFT system is
regulated by the criminal law and criminal procedure law, as well as relevant
laws, defining the rights and duties of these bodies.
Subjects of financial monitoring are listed
in the article 3rd of the Law "On counteraction to legalization
(laundering) of proceeds from crime and terrorist financing" from
28.08.2009, ¹ 191-IV, the financial sector organizations carrying out
transactions with money or other property .
To the subjects of financial monitoring are:
1) banks,
organizations carrying out certain types of banking operations, with the
exception of the operator or operations center Interbank money transfer system;
2) exchange;
3) insurance
(reinsurance) organizations, insurance brokers;
4) a single
accumulative pension fund and voluntary pension savings funds;
5) professional participants of the
securities central depository;
6) notaries performing notarial actions
with money and (or) other property;
7) lawyers, other independent legal
professionals - in cases where they are in the name of or on behalf of clients
involved in transactions with money and (or) other property in respect of the
following activities:
purchase and sale of real estate;
management of money, securities or other
assets;
Management of bank accounts or securities
accounts;
accumulation of funds for the creation,
maintenance, operation or management of the company;
the creation, purchase and sale, operation
of the legal entity or its management;
8) accounting organizations and
professional accountants engaged in entrepreneurial activity in the field of
accounting, auditing organizations;
9) organizers of gambling and lotteries;
10) mail operators
providing money transfer services;
11) microfinance
institutions;
12) payment of the
organization;
13) individual
entrepreneurs and legal entities engaged in leasing activities as a lessor
without a license;
14) pawnshops;
15) individual entrepreneurs
and legal entities engaged in transactions with precious metals and precious
stones, jewels from them;
16) individual entrepreneurs and legal
entities that provide mediation services in transactions of purchase and sale
of real estate;
17) Social Health Insurance Fund.
State bodies of the
Republic of Kazakhstan are not subject to financial monitoring.
General principles of counteraction of legalization of illegal uniform for
all financial monitoring subjects listed in the above article. Their duties, in
particular, include the organization of internal controls designed to ensure
due diligence, identification of suspicious transactions, the direction of
information on such transactions in the authorized body - the Financial
Monitoring Committee.
Financial Monitoring Committee shall audit the
financial transactions and for good cause, transfer them to the police.
Financial Monitoring Committee is a key element of the national AML / CFT system. In
accordance with the Order of the Minister of Finance of the Republic of
Kazakhstan dated May 26, 2008 ¹ 258 "On Approval of the Regulations on the
Committee for Financial Monitoring of the Ministry of Finance of the Republic
of Kazakhstan" defines the tasks of the Committee on financial monitoring:
1) implementation of a uniform state policy in the sphere of counteraction to
legalization (laundering) of illegally acquired and financing of terrorism;
2) countering the legalization (laundering) of illegally acquired and financing
of terrorism, coordination of work of state bodies in this area of
activity;
3) the creation of a unified information system and maintenance of the national
database in the field of counteraction to legalization (laundering) of
illegally acquired and financing of terrorism;
4) the implementation of cooperation and information
exchange with competent authorities of foreign states in the sphere of
counteraction to legalization (laundering) of illegally acquired and financing
of terrorism;
5) represent the interests of the Republic of Kazakhstan in international
organizations on countering the legalization (laundering) of illegally acquired
and financing of terrorism.
Also, the basic functions
of the Committee:
1) Implementation of the collection and processing of
information on transactions with money and (or) other property, subject to
financial monitoring according to the Law;
2) Implementation of analyzing information in the sphere
of counteraction to legalization (laundering) of illegally acquired and
financing of terrorism;
3) coordinate the activities of state bodies in the sphere of counteraction to
legalization (laundering) of illegally acquired and financing of terrorism;
4) upon request of the court in criminal cases the direction of the necessary
information on transactions with money and (or) other property, subject to
financial monitoring, to allow materials in production;
5) provision in the legislation of the Republic of Kazakhstan at the request of
the special government and law enforcement data and information on transactions
subject to financial monitoring;
6) if there is reason to believe that the transaction
with money and (or) other property related to legalization (laundering) of
proceeds from illegal means and (or) financing of terrorism, the transmission
of information to the Prosecutor General of the Republic of Kazakhstan for
sending in special state and law enforcement agencies in accordance with their
competence to adopt procedural decisions;
7) participate in the development and implementation of programs on
counteraction to legalization for International Cooperation (laundering) of
illegally acquired and financing of terrorism;
8) the organization of formation and maintenance of the
national database, as well as providing methodological unity and coordinated
functioning of information systems in the sphere of counteraction to
legalization (laundering) of illegally acquired and financing of terrorism;
9) Development and implementation of measures to prevent
violations of the legislation of Kazakhstan on counteraction to legalization
(laundering) of illegally acquired and financing of terrorism;
10) generalization of practice of application of the
legislation of the Republic of Kazakhstan on counteraction to legalization
(laundering) of illegally acquired and financing of terrorism on the basis of
information received from the state bodies and other organizations, as well as
the development and introduction of proposals to improve it;
11) study of international experience and practice of
counteraction to legalization (laundering) of illegally acquired and financing
of terrorism;
12) carrying out of measures for retraining and advanced training of personnel
in the sphere of counteraction to legalization (laundering) of illegally acquired
and financing of terrorism;
13) participate in the activities of international
organizations in the sphere of counteraction to legalization (laundering) of
illegally acquired and financing of terrorism;
14) in coordination with the state body in charge of regulation and supervision
of financial market and financial organizations, the definition of the list of
offshore zones for the purposes of the Act;
15) other fully
The term "laundering" of money (Eng. Money
laundering), was first used in the 1980s in the United States in relation to the
proceeds of drug trafficking and refers to the process of converting illegally
obtained money into legal money. [4] Proposed many definitions:
The wording given in 1984
US President's Commission on Organized Crime, "Money laundering, the
process by which the existence of hidden, illegal or illicit origin of the use
of proceeds, and then these revenues are masked in such a way as to appear to
have legitimate origins." [5]
In international law, "Money laundering and
other property - a process in which funds obtained through illegal activity,
and as a result returned to the owner in a different form for the creation of
legality of the revenue visibility, concealment or persons who initiated these
actions and ( or) received incomes, as well as the illegality of the sources of
these funds "[6]
In modern Kazakhstan
legislation legalization (laundering) of proceeds of crime, - involvement in
lawful circulation of money and (or) other property obtained by criminal means,
through transactions in the form of the conversion or transfer of property that
is the proceeds of criminal offenses, or possession and the use of such
property, concealment or disguise its true nature, source, location,
disposition, movement, property rights, or his belonging, knowing that such
property is the proceeds of criminal offenses, as well as mediation in the
legalization of money and (or) other property obtained by criminal means; [7]
The wording in the Great Law Dictionary - Legalization
(laundering) of proceeds of crime - a crime in the sphere of economic activity,
which is defined as transfer of illegally obtained cash into other assets, the
concealment of the true source or ownership, from which were obtained illegally
money, as well as giving the nature of the rule of law to specify the source
and ownership. [8]
Differences in approach, mainly related to the
definition of predicate composition -list previous unlawful acts, which are the source of origin
of the legalized funds. However, in this case, it is important to note that the
legalization, in the general case, it is the subject's desire to conceal the
sources of origin of the material benefits obtained as a result of breach of
any of the established rules.
In recent years, this
subject is in focus of the international community. It defines the business
standards throughout the world, directly affect the stability issues of the
global economy in general and the particular business of the company in
particular. Over the past few years, the frequency of investigations of
violations in the area of compliance, the size of the effects and
the value of sanctions in relation to business activities which were not found
to conform to the various compliance standards has increased considerably and
has become a significant risk, which should know, and which should take into
account any lawyer, carrying out a legal analysis of the international
activities of the company or the customer.
List of
references:
1. Law of the Republic of Kazakhstan dated August 28, 2009 ¹ 191-IV «About
counteraction to legalization (laundering) of proceeds from crime and terrorist
financing." http://adilet.zan.kz/rus/docs/Z090000191_
2. "Strategy"
Kazakhstan-2050 ": a new policy established state" Message from the
President of the Republic of Kazakhstan - Leader of the Nation NA Nazarbayev to
people of Kazakhstan, Astana, 14 December 2012
http://adilet.zan.kz/rus/docs/K1200002050
3. Order of the Minister of Finance of the Republic of Kazakhstan dated May 26,
2008 ¹ 258 "On Approval of the Financial Monitoring Committee of the
Ministry of Finance of the Republic of Kazakhstan»
http://adilet.zan.kz/rus/docs/V14E0009846
4. Bosworth-Davies, R. (2007). Money laundering - chapter five. Journal of
Money Laundering Control, 10 (2), pp.189-208.
5. New books on
organized crime. (1995). Trends in Organized Crime, 1 (2),
pp.105-107.
6. Convention against illicit drugs and psychotropic substances. (1989). Medicine
and War, 5 (4), pp.222-222.
7. On
counteraction to legalization (laundering) of proceeds from crime and terrorist
financing (as amended as of 22/12/2016 was)
https://online.zakon.kz/Document/?doc_id=30466908#pos= 0;
8. Big Law
Dictionary. 3 ed. / Ed. AND I. Sukharev. -M:. INFRA-M, 2007, 6.858 sec.
http://slovari.yandex.ru/dict/jurid/