Through the media, news related to relatives and people close to the First Lady, Nadine Heredia, who are allegedly involved in transfers or operations related to contributions made to the Nationalist Party, whose origin is presumed to be illicit, reason for which the prosecutorial investigations are being processed for the alleged commission of the crime of money laundering to the detriment of the State. In view of this, it is necessary to gather some basic aspects of this criminal offense.
The crime of money laundering, also known as money laundering, was introduced in our legislation through Law N. 27765, dated June 26, 2002, later repealed by Legislative Decree N. 1106, dated April 19th, 2012, enacted during this government, which brought about several modifications to the system for the prevention of money laundering and financing of terrorism.
In simple terms, the criminal law punishes those conducts aimed at hiding or concealing the illicit origin of goods or resources, inserting them in the economic traffic through different operations with the purpose of giving the appearance of legality to goods of criminal origin, which is precisely what is known as “laundering” or “laundering”, thus avoiding the identification of the origin of the goods or resources.
The need to criminally punish this crime is due to the serious affectation or destabilization of the socio-economic order of the country, that is, related to the idea of the legality of the goods that circulate in the market, since the criminal acts from which the illicit funds come (source crime or predicate offense) are generally related to acts of illicit drug trafficking, illegal mining, human trafficking, organized crime, etc., that is, criminal figures of special gravity.
In order to control the origin of the money and following the international trend, Law No. 27693, dated April 12th, 2002, created the Financial Intelligence Unit (hereinafter UIF), a specialized unit of the Superintendence of Banking and Insurance and Private Pension Fund Administrators (SBS), which has, among other functions, to issue the so-called “Suspicious Operations Reports” based on the economic-financial information submitted by the compliance officers of the banking entities. It is a working document of a reserved nature and the information contained therein, after the respective analysis and investigation, is transmitted to the Public Prosecutor’s Office in cases where there is a presumption of a link with money laundering activities; since generally this type of investigation is initiated as a result of the report issued by said entity, and/or due to the existence of indications of unjustified asset imbalance.
On the contrary, it is a strong indication that could justify the initiation of an investigation for the crime of money laundering, but later in the procedural iter, in order for it to have evidential value it must be introduced to the contradictory debate, through the examination of its authors and ratification, in order to be considered as institutional expertise and be valued according to the criteria of free judicial valuation.
Now, beyond the political scandal and the pre-electoral appetites surrounding the Nadine Heredia case, it is worth asking ourselves if during the previous governments or the current one, measures have been implemented to control and monitor public and private contributions to the various political movements and parties. The answer is negative, not only are there legal gaps in the current regulations, but the projects sent by both the SBS (UIF) and the National Jury of Elections (JNE) have fallen on deaf ears, because there is no political will for change, as could be for example that these organizations have the status of obligated subjects to prevent money laundering, like many others.
For example, there has been an attempt to modify the Law of Political Parties in order to introduce the obligation to bank the contributions or financing made to political parties or movements, which curiously continues to be blocked in Congress. Another palpable example is the rejection of the request for the extension of powers of the UIF, to the extent that such entity may proceed to lift the banking and financial secrecy when it finds reasonable indications of the commission of the crime of money laundering, however, the answer in this case has a constitutional basis, since by mandate of art. 2°.paragraph 5 of our Political Charter, they may only be lifted by court order, by the Attorney General’s Office or by an investigative commission of Congress according to law, although the mentioned extension would expedite such function and would avoid multiple complaints and investigations at the prosecutorial level.
All this leads us to affirm that unfortunately there has been no political will to change the current situation, because despite the supposed general preventive purpose sought by the criminal law with the regulation and stiffening of penalties for this type of crimes – art. 4°, D. Leg 1106 -, the crime entails a serious and serious risk for the victims. Leg 1106, the crime carries a penalty of up to 20 years of imprisonment, when aggravating circumstances concur and a minimum penalty of 25 years of imprisonment, when the preceding crime is illicit drug trafficking, illegal mining, etc- this has not generated the expected effects, being undeniable that if we continue with the current legislation we cannot expect to improve the democratic institutionality, which together with the entrenched corruption at state and private level, translates into the hindering of the distribution of public resources to the neediest populations.
