According to FAFT Recommendation: Countries should criminalize money laundering on the basis of the Convention regarding illicit trafficking of narcotics and psychotropic substances (1988,Vienna convention,) 1 and The United Nations Convention Against Transnational Organized Crime (2000, Palermo Convention) 2 .
Key words: Money laundering, crimes against patrimony, penal reform
Introduction:
By criminalizing the act of money laundering Romania respects the obligations undertaken as a result of the ratification of the Convention of Strasbourg of 1990. Unlike the criminal legislation of other states, the Romanian Criminal Code did not contain any provision regarding the criminal liability for money laundering.
The draft of the Romanian Criminal Code in 2004 3 incriminated money laundry in Title II- Crimes against patrimony, in article 268, with the following content: a) change or transfer of goods, with the knowledge that they origin from crimes, with the purpose of helping the person that committed the crime from which the goods originated, to evade prosecution, trial or execution of the punishment;
* PhD. In Progress, Professor Assistant, Faculty of Law, Danubius University from Galatz 1 Ratified in Romania through Law 118 of December 12th, 1992, published in the official Monitor of Romania no. 341 of December 30 th , 1992. 2 Ratified by Romania through law 565 of October 16 th , 2002, published in the Official Monitor of Romania no. 813 of November 8th,2002 3 Law 301 on June 28 th 2004 on the Criminal Code, Published in the Official Monitor no.575 on June 29 th 2004. b) hiding or dissimulating the truly nature, origin, situation, disposition, circulation or property of the goods or the right to these goods, with the knowledge that these goods originate from committing crimes; c) attainment, tenure or use of goods with the knowledge that they come from committing crimes 4 . As we can notice, the legislator assumed the provisions of Law no.656/2002, excluding the collocation with the purpose of hiding or dissimulating the illicit origin of these goods, as hiding or dissimulating do not appear as end for money laundry but are ways for attaining the purpose of evading responsibility. The generic judicial object of the crimes, provisioned in article 268 CP in 2004 is subsequent to the generic judicial object of the crimes through which the product to be cleaned is obtained. 5
These lead to the fact that the generic object can be delineated only following the existence of an anterior special judicial object transgressed by committing a primary crime. Thus, the finding of the crime of money laundry can be made concomitant or subsequent to finding the crimes whose products are being cleaned. Under this aspect, the conviction for the action provisioned at article 268 Criminal Code in 2004 cannot be made except for the situation in which the income originates from a primary crime. Therewith, in the opinion of some authors, if the judicial object of the first modality focuses on the material objects (tangible goods) then the second modality refers to rights as well. The Romanian legislator used a wide meaning for the material object of money laundering. From judicial point of view, if the money is in national currency of foreign one is not relevant. In the meaning of paragraph 1 of article 268 in the Criminal Code in 2004, the goods represent the material goods, tangible or intangible, mobile or immobile, as well as the judicial acts or documents
4 Criminal Code and related documents, Official Monitor of Romania, Bucharest, Regia Autonom, 2004, p.119 5 Bucharest Tribunal- Criminal section, closure 3268 on May 26 th 2005, unpublished If the defendants were preventively detained for committing the crime of embezzlement and money laundering, the existence of the latter cannot be proved as long as the proof of the existence of solid clues of committing money laundry is not made, as it is very difficult to admit the possibility of committing, by one and the same action, of money laundry as well as embezzlement by the same person, in the circumstances in which, according to article 23, paragraph 1(a) of Law 656/2002, money laundering represents the change or transfer of goods originating from a crime with the purpose of dissimulating the illicit origin of those goods. Money laundry entails therefore the existence of goods with illicit origin regarding which commercial activities are performed, with the purpose of creating a legality appearance. Money laundering could be subsequent to embezzlement and not concomitant to it, embezzlement entailing the removal of goods with illicit origin from the patrimony quoted by Nicoleta Cristus, Evaziunea fiscal i splarea banilor, Practic judiciar, Hamangiu Publisher, Bucharest, 2007, p.194 attesting the a title or a right regarding these (article 268, paragraph (2), Criminal code). In what concerns the origin of the material object of money laundering, this has to be only the origin of the crimes and not of other actions such as contraventions, civil or customs delinquencies etc. The expression main crime according to article 2, h) in the Strasbourg Convention defines any crime leading to a product susceptible of becoming the object of product cleaning of a crime, among those provisioned in article 6 on the Convention. Given that article 268 Criminal Code in 2004 did not provision the area of the crimes representing the origin of the goods that are objects of cleaning in the ways provisioned by the article in question, it is considered, referring to the provisions of the Convention, that they could be any of the following crimes: drug traffic, breaching the regime of weapons and monition in aggravated form, breaching the regime of explosive material, forgery of coins or other values, pandering, contraband, blackmailing, illegal privation of liberty, bank fraud, finance or insurance fraud, fraud bankruptcy, stealing and concealing vehicles; breaching the regime of protected goods, traffic with animals protected by law; commerce with human tissue and organs, computer crimes, credit card crimes, crimes by committer by people involved in criminal associations; breaching the dispositions regarding waste and residue import, breaching dispositions regarding gambling etc. The objective side of the crime is explained more widely than in other legislations, including a few modalities. All these modalities have an alternative character, being sufficient to incriminate at least one of them. A first modality of committing a money laundry crime is defined by the legislator as being the changing or transfer of goods, with the knowledge that they originate from committing crimes, with the purpose of helping the person committing the crime to evade prosecution, trial or the execution of the punishment. This first modality has two forms: changing and transfer of goods. The second form of the same modality, transfer of goods, represents the second movement of the goods from one place to another, where the good would appear to be legal. The objective side of the second modality has two forms: hiding and dissimulating the true nature of the origin, situation, disposition, circulation or property o the goods or the right over these, with the knowledge that the goods originate from crimes. In paragraph 2 of article 268 the concept of goods susceptible to be hidden or dissimulated is explained. 6
Hiding or dissimulating, in the interpretation given by article 268 Criminal Code in 2004 refers not only at the tangible good but mostly at its
6 George Antoniu, Reflecii asupra crimei organizate, In Criminal Law Journal, No. 3/1997, p. 111 intangible existence, meaning the rights constituted on the material good produced from the main crime. Such an interpretation starts from the use of the notions property of the goods and rights over them by the legislator. The collocation property on the goods defines the right to property over the goods and does not make any reference of object of property regarding the good, in material sense. The third modality of money laundry is represented by obtaining or using goods, with the knowledge that they originate from crimes committed. This modality comprises three alternative forms. This modality aims at creating confusion regarding its connection to the crime of concealing provisioned in article 221 in the Criminal Code in force (article 270 in the new Criminal code) from the reason that the latter provisions some similar forms to receiving, obtaining, transformation of a good or facilitating its valuation, with the knowledge that the good originated from committing a crime provisioned in the criminal law, if that aimed at obtaining a material benefit for them or someone else. We must underline the difficulty of making a parallel between the two crimes, as due to the use, in article 221 Civil Code in force of the term concealing and its lacking in the disposition itself of article 221 we cannot distinguish correctly if the concealing represents a modality of money laundry under the form of obtaining or transforming the good; or the purpose of money laundry is to hide (this term being synonym to conceal). The purpose is different in the two components, unlike the form of manifestation of the tangible object that coincides. If the purpose of money laundry is evading liability then the purpose of concealing is obtaining a tangible good for ones self or for someone else although the danger of the two crimes is somehow common; or the concealing or hiding brings prejudice to the patrimony relations by making possible the loss of the track of the goods originating from crimes mentioned in the criminal law, impeding therefore the recovery of these goods and reintegrating the in the patrimony from where they were illicitly removed. From the considerations mentioned above we can assert that money laundry is not a complex crime that would include the crime of concealing and the crime of concealing is a subsidiary crime, in relation to money laundry. The composition of money laundry is formal. The subjective side includes the guilt under the form of direct intention, as is committed with a purpose directly determinate in the criminal law. The subjective element of money laundry always involves the purpose. This is expressly indicated only for the first modality of money laundry. Holding the indirect intention as a form of guilt in the case of money laundry has raised a lot of controversy in the doctrine 7 the majority expressing the idea that the indirect intention cannot be held as the purpose of impeding or delaying the prosecution, trial or execution of the punishment or the one of ensuring the control on the illicit incomes of the offender cannot imply anything else than the direct intention as a form of guilt. The same purpose has to be understood as well for the second modality of money laundry, as hiding a right of property mans actually hiding the very illicit origin of that good. The third modality can have another purpose- the one of obtaining an income for ones self or someone else but only in the presence of the purpose if legalizing the criminal income. The active subject of money laundry can be any person. The crime can be committed in all the forms of criminal participation: as coauthors, instigation, complicity. According to the provisions in article 270, the judicial person is punished in case of committing money laundry. By incriminating money laundry in the Criminal Code, Romania respects its obligations assumed following the ratification of the European Strasbourg Convention 8 by law no.263/2002. In the draft of the new Criminal Code Bill of Romania in 2009, the money laundering was provisioned in article 269 with the following content: (1) Any type of the judicial operation, with the purpose of identifying the illicit origin, situation, circulation of the real titular of the right to property or the existence of other types or civil right regarding a good, by a person who either knew, or provisioned from concrete circumstances, that that good originates from committing a crime mentioned in the criminal law, even without the knowledge of its nature, is punished with imprisonment from 3 to 10 years and forbiddance of exerting some rights. (2) The action is considered to be a crime when it was committed by the author or by a participant at the action provisioned by the criminal law the good comes from. (3) The attempt is punished. According to authors Dabu and Ctinean 9 the generic judicial object (the generic judicial object is the criteria that served the legislator in classifying the crimes 10 ) of money laundering is represented by the social relations through the state protects the legal circuit (financial, banking, economic, commercial and civil) preventing and combating the illegal circuit
7 Paul Munteanu, Cteva elemente de distincie ntre splarea de bani, tinuire i favorizare, In Handbooks of Criminal Law, No. 1/ 2008, p. 46 8 George Antoniu, quoted, p. 111 9 Valeric Dabu, Sorin Ctinean, Despre splarea produsului infraciunilor, In Law Magazine, No. 12/2002, p. 154 10 Dobrinoiu Vasile, Dreptul Penal. Partea General, Bucharest, Ed. Europa Nova, 1999, p. 139 of goods, product of some serious crimes provisioned by the law, by establishing some obligations to certain private and judicial persons, to notify the operations with this type of goods, to abstain from performing acts and judicial actions related to the criminal product or to favor certain authors or participants at the main crimes. The Romanian doctrine underlined the necessity of including money laundering in the category of Crimes against patrimony considering that this crime brings prejudice in the first place, to the relations of patrimonial nature. This opinion was argued by the fact that money laundering implies the loss of track of the goods obtained by committing crimes and directing them to a destination that allows the criminal to benefit from the goods and invest in profitable businesses. 11
We share the opinion expressed in the literature and doctrine regarding the premises of money laundering, in the meaning that money laundry brings prejudice in the first place to the patrimonial interests and to justice in subsidiary. Dissimulating the illegal origin of the goods coming from crimes with the purpose of impeding the competent authorities to identify them and ensure the control on the profits obtained in this manner brings prejudice to the patrimonial interests.
Conclusions:
The Criminal Code of Romania adopted through Law no. 301/2004, in Title II Crimes and offences against patrimony, art. 268, incriminated the crime of money laundering, reproducing the text of the article 23 of Law no 656/2002 to prevent and punish money laundering, and setting forth measures to prevent and suppress the financing of terrorist acts. Although by adopting the new Criminal Code by Law 286/2009 12 the crime of money laundering was no longer provisioned in article 269 of Title IV- Crimes against justice, as it had been incriminated in The New Penal Code Bill, the money laundering prevention and control represents the subject-matter for a special criminal law - Law no. 656/2002 to prevent and punish money laundering, and setting forth measures to prevent and suppress the financing of terrorist acts.
11 Camelia Bogdan, Infraciunea de splarea a banilor i infraciunea de tinuire, In Romanian Penal Law Review, No.4/ 2009, p. 92 12 Law 286/2009 on the Criminal Code, published in the Official Monitor of Romania, No.510/ July 24 th 2009 Selective bibliography:
Law 301 on June 28 th 2004 on the Criminal Code, Published in the Official Monitor no.575 on June 29 th 2004 Criminal Code and related documents, Official Monitor of Romania, Bucharest, Regia Autonom, 2004 Nicoleta Cristus, Evaziunea fiscal i splarea banilor, Practic judiciar, Hamangiu Publisher, Bucharest, 2007 George Antoniu, Reflecii asupra crimei organizate, In Criminal Law Journal, No. 3/1997, p. 111 Paul Munteanu, Cteva elemente de distincie ntre splarea de bani, tinuire i favorizare, In Handbooks of Criminal Law, No. 1/ 2008, p. 46 Valeric Dabu, Sorin Ctinean, Despre splarea produsului infraciunilor, In Law Magazine, No. 12/2002, p. 154 Dobrinoiu Vasile, Dreptul Penal. Partea General, Bucharest, Ed. Europa Nova, 1999, p. 139 Camelia Bogdan, Infraciunea de splarea a banilor i infraciunea de tinuire, In Romanian Penal Law Review, No.4/ 2009, p. 92 Law 286/2009 on the Criminal Code, published in the Official Monitor of Romania, No.510/ July 24 th 2009