Predicate Offences Research Articles

The Role of Criminal Investigation in Facilitating Asset Recovery in Economic Crime in Tanzania

This paper seeks to discuss the role of investigation in facilitating the asset recovery process in Tanzania. In so doing, it gives an overview of the conceptual, legal, and practical aspects tied to investigation of asset recovery cases and looks at the extent to which they facilitate asset recovery in the country. There cannot be successful asset recovery if no proper and adequate investigation is conducted. It is through investigation that watertight evidence is gathered and collected whereupon it is adduced in court against accused persons who stand charged with money laundering and/or any of predicate offences. Prosecution cannot secure conviction, which is a pre-condition for asset forfeiture if both criminal and financial investigations are not adequately or thoroughly well done. Equally important, application for forfeiture order process in court after conviction depends on what was revealed by investigators in respect of assets that are subject to forfeiture. The paper finds that the legalinstitutional framework on dealing with asset recovery cases in Tanzania is inadequate thereby causing investigation to face several challenges. Having identified those challenges, the paper makes some recommendations aimed at remedying the situation. The recommendations focus on reforming the laws so that they adequately address asset recovery issues in the country. Keywords: criminal investigation, investigators, predicate offences, conviction-based forfeiture, asset recovery.

Kewenangan Jaksa Dalam Melakukan Penggabungan Perkara Korupsi Dan Money Laundering (Studi Kejaksaan Tinggi Sumatera Utara)

There are many facts that occur that the perpetrators of money laundering crimes commit money laundering crimes from the proceeds of their crimes and most are obtained from criminal acts of corruption. Money laundering actors carry out various modes to eliminate traces of their actions. Money Laundering (Money Laudring) as a crime has a characteristic that this crime is not a single crime but a double crime. The point is that the crime of Money Laundering is a form of crime committed by either a person or a corporation, although the prosecutor has the authority to combine corruption and money laundering cases, we rarely see the merger between these two crimes. This type of research is a normative juridical research. With the main problem in the form of How is the relationship between corruption as a Predicate Crime in Money Laundering? How is the prosecutor in carrying out his authority to combine Corruption Crimes and Money Laundering Crimes? What are the Prosecutor's Barriers in Merging Corruption Crimes and Money Laundering Crimes? In every anti-money laundering provision there must be an element called a predicate offence, which means that from the results of any crime that can be subject to the provisions of Article 3, Article 4 and Article 5 of Law No. 8 of 2010 concerning Crimes Money laundering. The crime of Corruption and Money Laundering has a very fundamental relationship or relationship. If there is a merger of investigations into cases of corruption and money laundering, the Prosecutor must make a description of the two crimes in one indictment so that the indictment is in the form of an alternative and the Prosecutor must prove the two crimes before the trial. Based on Article 141 of the Criminal Procedure Code (KUHP), it is stated that the Public Prosecutor can combine cases and make them into one indictment, if at the same time or almost simultaneously they receive several case files. The prosecutor's obstacle in merging Corruption Crimes and Money Laundering Crimes is that it requires a long investigation time, because investigators must always coordinate with PPATK (Financial Transaction Reports and Analysis Center) to track money and assets of the suspect and coordinate with related parties, in court against the trial process, namely the course of the trial process will take a long time

ODMERAVANJE KAZNE ZA KRIVIČNA DELA U STICAJU

The process of sentencing means individualization and customization types and extent of sentencing the crime and its perpetrator. In that way, the purpose of criminal law, which consists in the last defense of the society from crime, is best realized. The whole process of keeping the pre-trial and criminal proceedings has the ultimate goal of sentencing the defendant. Furthermore, the procedure of execution of the sentence is based on its previous measurement and adjustment of the personality of the convicted person. Hence, the case law abounds with examples in which an inadequately measured sentence has called into question the criminal procedure itself and the defensive function of criminal law in the society. The issue of sentencing in modern criminal law has been resolved in accordance with modern trends in the field of punishing perpetrators of criminal offenses. Therefore, we can distinguish between regular sentencing, which means that the perpetrator goes to court for one criminal offense. However, in court practice, it is not uncommon for the perpetrator to go to court due to multiple predicate offenses made in ideal or real time. In this case, special sentencing rules apply, which take into account the fact that several criminal offenses are tried at the same time. In criminal doctrine, there are several modalities of sentencing for predicate offenses. Their number varied in different time intervals. Our legislator has incorporated into its norms three ways of sentencing for predicate offenses. These are the systems: absorptions, asperations, and cumulations. In this paper, we will point out the advantages, disadvantages and applicability of each of these systems that sentencing predicate offenses.

PMLA 2002’s Gremlins: Anatomizing the Labyrinth of Recent Amendments and Precedent

Abstract Enacted to regulate the incubus of organized crime, India’s Prevention of Money Laundering Act has quickly degenerated into interpretative chaos, with conflicting judicial opinions straining its otherwise sound provisions. Instead of chastening statutory mercuriality, close to eleven amendments to the Act have only fuelled incertitude further. The most damaging feature of the PMLA’s disarray is that the interpretive conflict eclipses the most basic punitive machinery of the Act. Part 2 of the article clarifies the relationship between the offence of money laundering and its predicate offences in the realm of how the latter ought to influence property attachment and prosecution proceedings for the former. Part 3 dissects the complication of Indian Criminal Procedure’s applicability to investigations under the PMLA and proposes an inventive two-step enquiry to determine the extent of said applicability in view of the provisions of both statutes. Part 4 chronicles the peculiar acquiescence of some Indian courts in not insisting upon furnishing written grounds of arrest to a detenu and explains why that jurisprudential course deserves to be abandoned. Lastly, Part 5 addresses the topical disputation of the effect of recent amendments on the potential revival of sui generis bail conditions under the PMLA that had previously been declared unconstitutional. The article presents a syncretism of recommended interpretative paths that the judiciary must take to remedy the recognized flaws.

Intelligence and Corruption

The Journal of Intelligence, Conflict, and Warfare is pleased to publish the following thought piece from one of our esteemed Speakers from the 2020 West Coast Security Conference. The author, Mr. Dalip, is a lawyer working in the financial crime and corruption sphere. From 2015 to 2018, Mr. Dalip was a chairman at the Steering Group Planning Committee for the Caribbean Financial Action Task Force (CFATF); and from 2014 to 2018, he was a special legal advisor to the Ministry of Attorney General Trinidad and Tobago. The intersection between corruption and intelligence is gaining increased focus. Foreign intelligence services have an anti-corruption role at the strategic level through Intelligence Risk Assessments and at the operational level during post-conflict operations. Intelligence assessments of the effectiveness of non-kinetic tools on target countries also guide implementation and policy changes. The roles of security intelligence and foreign intelligence services are, however, no longer always discrete, particularly in the context of non-state actors. Foreign intelligence services would benefit from the skill sets of security intelligence agencies in detecting corruption related predicate offences, both in performing their core roles and supporting law enforcement operations. This includes the use of financial intelligence as well as other key open source intelligence resulting from anti-money laundering frameworks, the development of which has been driven globally by the Financial Action Task Force. In performing these roles, intelligence agencies must also be mindful of their own vulnerability to corruption.

Confiscation under Money Laundering Law: A Comparison of Legal Measure between Thailand and the United States

This article shows the explanation of legal measure in confiscation related money laundering between the Anti-Money Laundering Act 1999 (AMLA 1999) of Thailand and the Money Laundering Control Act 1986 (MLCA 1986) of the United States to answer the research question that the confiscation under the AMLA 1999 is not the effective legal measure to handle money laundering anymore. By applying a comparative and descriptive method, this article shall be analyzed with two focuses such as (1) the definition of predicate offence under Article 3 of AMLA 1999, and (2) the method of confiscation under Article 51 of AMLA 1999. It has found that (1) Article 3 of AMLA 1999 does not have enough predicate offences definition to cover up all illegal activities which cause a risk of money laundering or financial crime, and (2) the method of confiscation under Article 51 of AMLA 1999 is the Property-based based confiscation which could not forfeit other assets not related to the offence. Therefore, the author suggests (1) adding the wide range of the definition under Article 3 of AMLA 1999 in predicate offences, and (2) adopting a value-based confiscation method into the AMLA 1999.

The Reverse Burden of Proof in Indonesia's Money Laundering: A Review

Money laundering has become one of Indonesia's serious criminal offenses. Then, cases related to it should proceed under the specific regulation and procedure. In Indonesia, money laundering is a further crime preceded by predicate offenses. In practice, there are two main problems to apply in money laundering: first, the principles' difference between national and international criminal laws, and second, their norm contradiction. Although the money laundering crime is claimed to be a further crime, it is separated from the preceded crime in prosecution, investigation, and evidence. This study aims to review the juridical contention of the reverse burden of proof in money laundering by considering the existing challenges to apply the norms. This study confirms that there is a juridical problem in the reversal of proof mechanism in money laundering. Therefore, the government should harmonize the existing laws relating to the reverse of the burden of proof in money laundering. It is essential to reform the existing regulations by harmonizing laws related to this case. It considers the existing fragmented criminal provisions set out in the Criminal Code and special laws to indicate serious crimes. This harmonization contributes to restoring the return of the state's losses resulted from this crime. Regulatory reform is inevitable. The government then needs to strengthen diplomatic relations with other countries, especially to enforce national laws through Mutual Legal Assistance (MLA) and extradition of money laundering perpetrators.
 KEYWORDS: Indonesian Money Laundering, Money Laundering Act, Reverse Burden of Proof.

Extraterritorial Jurisdiction and sovereignty. The Characterization of Foreign Predicate Offenses for Prosecution of Derivate Offenses (as Money Laundering) and the Consideration of Extraterritorial Conduct as Part of Territorial Offenses

The question of any limits that a state's extraterritorial jurisdiction faces has not yet been fully addressed by international courts and tribunals. The aspect appears somewhat entrapped between the expansion of international criminal law - and the obligation to crack down on international crimes - and a creeping restoration in the form of a reaffirmation of the sovereignty and sovereign equality of states. Furthermore, the extraterritorial exercise of jurisdiction is frequently associated with the practice of lawfare, a neologism that combines the words law and warfare and identifies the use (and abuse) of the law to achieve a political end or, in a more restricted sense , a military end. Two collateral aspects of extraterritorial jurisdiction have recently been examined in decisions of international courts and tribunals. The International Tribunal of the Law of the Sea (ITLOS) in the decision in the case of the MV Norstar (Panama v. Italy) provided an interpretation of the freedom of navigation which prohibits the exercise of the so-called prescriptive jurisdiction (that is, the form of jurisdiction that is alongside the executive jurisdiction and that of ruling on a specific issue and concerns the possibility of extending the scope of its laws and rules) by coastal States with respect to conduct (or parts of conduct) that take place in deep sea. The International Court of Justice (ICJ) in the decision on Preliminary Objections in the Immunities and criminal proceedings (Equatorial Guinea v France) - pending on May 31, 2020 - has incidentally dealt with the 2000 Palermo Convention on transnational organized - a aspect of the exercise of extraterritorial jurisdiction in an indirect form: the characterization of entirely foreign conduct as a predicate crime in order to judge an accessory such as money laundering. The paper analyzes the two decisions in the light of the positions of the parties and their respective decisions.

Tax Crimes as Predicate Offences under the EU Sixth Anti-Money Laundering Directive (2018/1673)

This article provides an analysis of tax crimes as predicate offences in respect of money laundering. While the Fourth Anti-Money Laundering Directive (2015/849) included tax crimes as predicate offences for money laundering in the European Union, it did not go far enough, with certain tax crimes being left out. This article analyses the effect of this development in the context of the Sixth Anti-Money Laundering Directive (2018/1673), which focuses on combating money laundering by imposing minimum rules under the Member States’ criminal laws. The Directive’s transposition date is 3 December 2020.

Mapping the contours and limits of “irresistible inference”

Purpose In R v Anwoir [2008] EWCA Crim 1354, the English Court of Appeal held that, in money laundering prosecutions, the criminal provenance of property can be proved by showing that the circumstances in which the property was handled give rise to the irresistible inference that it can only have been derived from crime. The purpose of this paper is to analyse subsequent developments that have revealed the contours, and some of the limits, of proof by “irresistible inference”. Design/methodology/approach This paper reviews the reported cases in which an “irresistible inference” was drawn and identifies the features common to most of them. It then explores the limits of proof by “irresistible inference” by reference to the continuing relevance of predicate offences and the use of money laundering tools and techniques for non-laundering purposes. Findings Most of the cases in which an “irresistible inference” was drawn fall within a narrow compass of five categories. The breadth of the principle is constrained by the characteristics of the predicate offence, and its usefulness is limited in cases where the typologies of the predicate offence and the money laundering offence overlap significantly. Originality/value This paper may be useful to those involved in prosecuting or defending money laundering cases, as well as regulated persons assessing their money laundering risks and disclosure obligations.

Independence and temporality: examining the PMLA in India

Purpose The Prevention of Money Laundering Act (the PMLA/the Act) was enacted in India in 2002. Since then, Indian courts have had to deal with two interconnected issues owing to the nature of the offence of money laundering (ML) as conceived in the Act itself. The first issue relates to the independence of the offence of ML from the conviction of the underlying offence; and the second is the manner in which the PMLA operates – whether it does so retrospectively or prospectively. The purpose of this paper is to delve into these questions as there is no definitive and binding answer provided for by the courts. It aims to provide normative answers to the above-mentioned questions to enable better functioning of the Act. Design/methodology/approach This research paper examines international conventions relating to ML, reports by inter-governmental bodies, the statutory language of the Act and judgements rendered by courts. Findings The paper goes on to conclude that for fulfilling the purpose of the Act, the offence of ML must be considered separate from the conviction of the predicate offence. As a result, it also concludes that the Act must apply in instances where the predicate offence was committed prior to its inclusion in the Act’s Schedule if the act of ML occurs after such inclusion. Originality/value There does not exist any scholarly literature addressing the judiciary’s interpretation of the Act regarding the said two issues in a systematic fashion. Added to this is the fact that there exist uncertainty and ambiguity because of conflicting judgements. By analyzing international instruments, the phraseology of the Act and contradictory case-law, this paper attempts to find definitive solutions to the said two questions in a purposive manner.

The financial intelligence unit and money laundering control in Tanzania

Purpose This paper aims to explore the role of the financial intelligence unit in Tanzania in fighting against money laundering and its predicate offences, examine its potential in controlling the problem and describe factors that undermine its efficacy. Design/methodology/approach The doctrinal research approach is used to analyse Tanzania’s anti-money laundering law and appraise its effectiveness in facilitating operations of the financial intelligence unit in fighting against money laundering and its predicate offences. The law-in-context approach is applied to interrogate the anti-money laundering law and describe non-law factors that impinge on the efficiency of Tanzania’s financial intelligence unit. Findings The law vests the financial intelligence unit with powers to perform a number of functions that are significant in fighting against money laundering and its predicate offences in Tanzania. The unit has been instrumental in curbing money laundering. The efficacy of this anti-money laundering agency, which is at its infancy stage, is emasculated by law-related, institutional and non-law factors. These factors undercut the potency of the agency. Practical implications There is a need for Tanzania to undertake policy, legislative and institutional reforms to augment the efficacy of the financial intelligence unit. The reforms should be implemented concurrently with other measures, which will enhance the country’s anti-money money laundering regime. Originality/value This paper applies the legal and non-law perspectives to evaluate the effectiveness of the financial intelligence unit as an essential component of Tanzania’s anti-money laundering regime. It proposes law-related and non-law approaches to augment the efficiency of the unit and the country’s anti-money laundering regime in general.

Human Rights as a Basis for Recovering the Proceeds of Grand Corruption

This article examines the problem associated with the reluctance of public officials of states victimised by grand corruption (victim states) to diligently pursue the recovery of plundered national assets located abroad. Traditionally, only the victim state can initiate processes for assets recovery. However, it cannot do so due to the complicity of its public officials in the commission of the underlying predicate and money laundering offences. Consequently, the victim state is deprived of the fair opportunity to recover assets derived from such offences and, ipso facto, such deprivation worsens the inability of the victim state to realise the second-generation rights of its citizens. Relying on the jurisprudence of international human rights, the article argues for the establishment of an alternative assets recovery mechanism. Specifically, it advocates the unilateral participation of states other than victim states (and other entities) in recovering those assets on behalf of the victim state despite the discordance of its officials.

ORGANISED CRIME IN PAKISTAN: A CRIMINOLOGICAL STUDY OF MONEY LAUNDERING

Organised crime is chameleonic in nature. It is transnational, dynamic, overlapped criminal activities and pervasive in nature. In the same way, money laundering is the predicate offence and it is naturally linked to other organised crimes. After the cold war, this nexus culminated during the occurrence of 9/11 in particular which was a lethal combination of money laundering (ML) and terrorist financing (TF). This combination is currently being experienced by Pakistan; where various terrorist groups are involved with direct and indirect support of proceeds from drug trafficking, assassination, land grabbing, arms smuggling and various other organised crimes routing through the abusage of financial and non-financial channels and support to terrorism. This has left serious socio-politico and economic consequences in the south Asian region and global as well. The researcher found very limited evidence of money laundering characteristics in the existing research literature on Pakistan. Thus to carry out research work on the subject was need of the hour in Pakistan. This led the researcher to find out root causes and existing weaknesses at the regime’s end in countering financial crime and financing of terrorism.

Creating Mechanisms to Get Good Access to Beneficial Ownership Information in International Context

International initiatives to enhance tax compliance and reduce the extent and impact of illicit financial flows have now been ongoing for over two decades, led primarily by the Organisation for Economic Co-operation and Development (OECD), the Financial Action Task Force (FATF), the Global Forum on Transparency and Exchange of Information for Tax Purposes (Global Forum), the European Union (EU), the United Nations Office of Drugs and Crime (UNODC), and the World Bank. Increasingly, the various forums, bodies, panels, and countries involved in developing policy responses to the issue of illicit financial flows are recognising that there are synergies between these regimes and initiatives that, if harnessed properly, can multiply the effectiveness of current individual approaches. For instance, while the stated purpose of the FATF Standards on transparency and beneficial ownership is to prevent the misuse of corporate vehicles for money laundering or terrorist financing, the implementation of these Standards supports efforts to prevent and detect other predicate offences such as tax crimes and corruption, while reinforcing jurisdictions’ capacity to meet their legal obligations arising from related international standards such as the UNCAC, the Criminal Law Convention on Corruption, the OECD Convention on Combating the Bribery of Foreign Public Officials in International Business Transactions, and the Standard for Automatic Exchange of Financial Account Information. Common to many of these regimes and standards is the shared recognition that the identification of the ultimate beneficial owners of accounts and of corporations is crucial to detecting, tracking, and preventing illicit financial flows, by enabling authorities to more effectively and efficiently “follow the money”. The aim of this paper is to provide the necessary contextual information around beneficial ownership, and its place in the broader transparency agenda, in order to enhance understanding amongst stakeholders of what is meant by the concept and what its effective implementation requires. Part I sets out a broad overview of current and historical developments in the financial transparency agenda. Part II provides an outline of the relevant international frameworks that prescribe the collection, verification, and disclosure requirements for beneficial ownership information (being, primarily, the AML/CFT FATF Standards and the bilateral/multilateral mechanisms for exchange of information for tax purposes). Part III discusses the benefits of, and barriers to, effective collection, disclosure and exchange of beneficial ownership information, and outlines practical steps that can be taken to enable and/or reinforce verification systems. Part IV establishes an overview of recent international developments on the concept of beneficial ownership. It presents a factual description of the initiatives taken by the OECD, the Global Forum, the FATF, the Extractive Industries Transparency Initiative, World Bank, UNODC, Transparency International and Tax Justice Networks. Part V seeks to provide some useful practical-oriented recommendations on short- to medium-term actions that could be taken in these types of capacity-constrained environments to improve transparency and enhance the effectiveness of current tools and practices for combatting illicit financial flows.

Prevention of money laundering and the role of asset recovery

The purpose of this paper is to examine the increasing emphasis of the UK anti-money laundering (AML) legislative framework, on the financial arrangements of criminals. Our qualitative study engaged key stakeholders from the AML environment through a series of focus groups. This included law enforcement; accountants; prosecutors; bankers and, importantly, ex-offenders. We argue that the inclusion of the views of a traditionally hard to reach group of ex-offenders, adds significantly to knowledge and understanding about effectiveness of AML. The research findings suggest that, at first glance, the focus on asset recovery has been successful. However, our respondents shared with us areas of tension and inconsistencies in application of the law, in particular between police and the courts. For example, whether it was better to prosecute the predicate offence separately or in addition to the offence of money laundering; or whether to pursue criminal or civil recovery. We further find that criminals have been able to use their knowledge to circumvent the system, suggesting that greater effort is needed to promote cooperation, rather than competition, in successfully detecting and prosecuting offenders.

Self-laundering of the proceeds of tax evasion in comparative law

The supranational and, in particular, European legislation impose the inclusion of tax evasion among the predicate offences of the money laundering and urge the introduction of the offence of self-laundering. Despite these inputs, the criminalization of self-laundering is problematic in terms of respect of the rule of law. In this perspective, the article highlights the difficulty of considering, in comparative law, the proceeds of tax evasion as a criminal profit which can be laundered, as well as the problems posed by the criminalization of self-laundering of this tax saving with respect to the principles of both ne bis in idem and proportionality. Subsequently, the article will focus on the aims of criminalizing the act of self-laundering, and also in this perspective the link emerges with tax evasion, before evaluating the necessity of such a tool in the broader armamentarium available today in the fight against the accumulation of illicit capital.

Optimization of Taxes as a Factor of Money Laundering

The optimization of the tax base remains a serious challenge for any business entity. At the same time, the challenge to keep economic activities in the legal field remains no less urgent. This paper deals with the issues of optimizing profit tax. Such methods of the tax optimization as the creation of various reserves, depreciation savings, leasing operations are analyzed. Special attention is paid to such negative phenomena as predicate offences. Their features are described, as well as the possible consequences of their commitment.

Predicate Offences of Money Laundering and Anti Money Laundering Practices in Bangladesh Among South Asian Countries

Abstract The purpose of the study is to identify the main reasons of money laundering in Bangladesh among the twenty seven predicate offences of money laundering prescribed by Bangladesh Bank and position of Bangladesh among South Asian Countries regarding anti-money laundering practices. Besides, an anti-money laundering model has been developed to combat against money laundering as 14 percent bankers think that only existing know your customer form and transaction profile of banking sector are not enough to detect money laundering. To conduct the study, 91 bankers have been surveyed to take response through structured questionnaire regarding their opinion about the predicate offences of money laundering and sufficiency of existing KYC form of banking sector to detect money laundering. From the responses, factor analysis, test of hypothesis, correlation and regression analysis have been conducted using SPSS software. The study identifies that predicate offences of money laundering can be minimized mainly through scrutinizing the activities of local criminals with foreign network and strict anti-corruption measures through automation in National Board of Revenue, strict policy adoption of criminal detection and support from foreign experts. Besides, regression model shows that only six predicate offences of money laundering explains 87.2 percent of money laundering that should get more emphasize to combat against money laundering. From the comparative analysis, it has been found that Bangladesh in holding better position just after India among six South Asian Countries according to Basel AML Index score. This study provides a complete understanding of the position of Bangladesh in case of money laundering and anti-money laundering practices. The integration of four domains, i.e. AML model development, factor analysis, econometric analysis and comparative analysis of AML index will provide insights to managers and policy makers about the money laundering scenario in Bangladesh.

New governors on the block: the rise of anti-money laundering professionals

Anti-money laundering (AML) activities are part of an institutionalized, global, and increasingly prescriptive regime, covering a growing set of predicate offences. Yet with much of the responsibility for implementation and monitoring at the hands of private actors, compliance professionals within financial institutions have become foot soldiers in the fight against money laundering. This paper argues that AML professionals do not only implement and monitor, however, but, to protect their interests, also shape the content of governance. The process is two-fold. First, a professionalization process is underway inside banks and other financial institutions. Professionalization has strengthened the relative standing of compliance departments against a background of lower tolerance for illegal and irregular transactions and a growing reputational and financial cost for banks knowingly or accidentally enabling such activities. From that position, the compliance industry has consolidated its role through the development of systematic professional standards and through identifiable skills and expertise as defined by professional associations. Second, anti-money laundering professionals interpret rules and engage in regulatory creep. They meticulously implement different requirements by developing private compliance standards and risk assessments that are technically sophisticated and designed to earn regulatory kudos; they do not simply follow what is required. Further, they extend their mandate by including other compliance facets. Acting out of concern for professional security and advancement, AML compliance officers become governors on the output, but also on the input side.