From money laundering to the seizure of assets of illicit origin

by | May 12, 2018 | Articles | 0 comments

Before addressing to our commentary agrees Laundering of Assets – to make some terminological precisions of asset laundering and seizure. The term “asset laundering” is a process by virtue of which assets of criminal origin are integrated into the legal economic system with the appearance of having been obtained in a lawful manner[1].

In other words, they are those commercial or financial operations always originating from crimes[2], which are invested, concealed, substituted, transformed and incorporated into the formal economic circuit of each country, either temporarily or permanently, of resources, goods or services that originate from or are related to criminal activities as if they had been obtained in a lawful manner[3].

Therefore, the idea underlying these definitions – taken from among many others – is the incorporation into the legal economy, through different mechanisms, of illicitly obtained wealth. Such mechanism is carried out through a successive process of placement, intercalation and integration acts, which the current criminal legislation qualifies as conversion, transfer, concealment and possession, respectively (Art. 1° and 2° of D.L. No. 1106)[4].

Consistent with this approach, the doctrine uniformly refers to the acts of conversion and transfer as initial conducts aimed at changing the appearance and origin of assets illicitly generated with organized crime practices. In other words, transforming one thing into another, for example the acquisition of movable or immovable property with cash of illicit origin.

On the other hand, when identifying acts of concealment and possession, they are referred to as final activities aimed at preserving the appearance of legitimacy acquired by the assets of illicit origin thanks to the acts carried out in the previous stages. In plain English, they are conducts that take place once the assets have acquired a fictitious appearance of legality as a result of previous acts of conversion or transfer[5].

The material object of the action of the crime may not only be money, much less cash[6], but also the assets acquired with it, whether movable or immovable[7]. This broad concept may include the direct product of the crime as well as the successive modifications that it undergoes in the legal traffic and that, according to international norms, constitute the assets: assets of any type, corporeal or incorporeal, movable or real, tangible or intangible, and the documents or legal instruments that prove the ownership or other rights over such assets[8].

For its part, seizure is the precautionary measure dictated on assets or alleged patrimonial rights, which are presumed to constitute instruments, effects or proceeds of crime, or are assets of equivalent value or assets belonging to criminal organizations, and for this reason they may be subject to confiscation[9].

The purpose of this measure is to ensure the confiscation of objects, instruments[10], effects and proceeds of crime[11]. In the case of the effects and proceeds of crime, it is presumed that the holder of these (goods or rights) does not have any ownership over them, on the contrary, he/she is in a situation of unlawfulness, therefore it is necessary to ensure the confiscation of these goods, taking possession or assuming ownership of them[12].

This is provided for in Art. 316 of the Criminal Procedural Code and Art. 9 of the. D. Leg. No. 1106 when establishing that the Judge shall order in all cases of money laundering the seizure or confiscation of the money, goods, effects or profits involved, according to the rules of art. 102 of the PC. The latter provides for the confiscation of the effects or proceeds of the crime, regardless of the transformations they may have undergone. Therefore, it implies the transfer of such assets to the sphere of ownership of the State.

In this sense, the seizure measure carried out to the real estate assets of the Humala Heredia family is in accordance with the aforementioned rules, since they are accused of receiving allegedly illicit money, the conversion of the same in the financing of the electoral campaigns 2016 (Receipt of money of alleged illicit origin – Venezuelan Government) and 2011 (receipt of money of alleged illicit origin – Odebrecht and OAS Companies) in which Ollanta Humala Tasso ran for office, the justification of the existing money through false contributors, as well as the fact that the money received was not used in its totality in the referred proselitist purpose, and the increase of the patrimony of the investigated parties.

However, the issue of questioning is presented in the analysis of the motivation of the requirements of the measure: i) The existence of minimum indications of criminality, in clear allusion to the concurrence of sufficient elements of conviction that establish that the assets to be seized would be linked to criminal events; and ii) the danger of delay, in the sense that there is a founded risk that not seizing or confiscating a criminal asset or thing would render ineffective the inquiry of the truth – obstruction of the investigation and of the process in general – and in its case the criminal enforcement measures.

Requirements regarding which the judge made a decision based on the “elements of conviction” reached up to this procedural stage (such as the Intelligence Reports, bank deposits, savings accounts, electronic transfers, credits, statements of the alleged bearers, etc.) and the “danger of delay” when considering the well-founded risk that the holders of the assets become insolvent or transfer the assets to third parties, thus making the seizure measure unsuccessful.

However, this resolution did not pronounce on why a seizure measure on previously seized assets was appropriate, especially since these are two different precautionary claims affecting the same assets and effects of the crime. The seizure is directly related to securing the payment of the civil reparation and the seizure has the purpose of securing the confiscation of objects, instruments, effects and proceeds of the crime.

Finally, it should be specified that the much commented universal principle of the “best interest of the child” is not a requirement for the suspension of a precautionary measure of seizure, since this principle is linked to the fundamental rights of the child in the paternal-filial relationship and therefore its derivatives (alimony, protection of the minor, etc.). To claim otherwise would be to denaturalize this principle, since any person who has an obligation to give a sum of money and has not complied with said obligation and his assets are affected, could not allege the principle of the best interest of the child in order not to comply with his obligations before third parties.

1] Blanco Cordero, Isidoro, El delito de blanqueo de capitales, P. 93.
2] Gómez Iniesta, Diego, El delito de blanqueo de capitales en Derecho Español, p. 21.
3] Cf. Ibid.
4] Also acts of transportation (Art. 3 D. L. N° 1106).
5] Basis No. 8 of Plenary Agreement No. 7-2011/CJ-116 dated July 6, 2011.
6] Benito Sánchez, C. Demelsa, “Money laundering and real estate fraud”, in: El desafío de la criminalidad organizada, Sans Mulas, Nieves (Coordinadora), Editorial Comares, 2006, P. 100.
7] Aranguez Sánchez, op. cit. Cit., p. 29; in the same vein, Blanco Cordero, Isidoro, op. cit. Cit., p.88; also Fabián Caparros, Eduardo A. El delito de blanqueo de capitales, p. 64.
8] Cf. Ibid.
9] GALVEZ VILLEGAS, Tomas Aldino. Las Pretensiones que pueden ejercitarse en el proceso penal. Jurista Editores. July 2013. P. 289.
10] The purpose in the case of instrumentalities is the deprivation of the means or objects with which the crime has been committed, and whose possession or possession by the agent of the crime or eventual third parties implies a danger that must be avoided. See, thus in Cfr. GALVEZ VILLEGAS, Tomas Aldino. Las Pretensiones que pueden ejercitarse en el proceso penal. Jurista Editores. July 2013. P. 290.
[11] SAN MARTÍN CASTRO: “Las medidas cautelares reales en sede preliminar: la incautación”. Ius et Veritas (Pontificia Universidad Católica Law Students’ Magazine). N° 19. P. 245.
12] Cfr. GALVEZ VILLEGAS, Tomas Aldino. Las Pretensiones que pueden ejercitarse en el proceso penal. Jurista Editores. July 2013. P. 290.